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 http://www.archive.org/details/cu31924064833472 
 
A TEEATISE 
 
 ON 
 
 ATTORNEYS AT LAW 
 
 BY 
 
 EDWARD M. THORNTON 
 
 In Two Volumes 
 VOLUME II 
 
 NORTHPORT, LONG ISLAND, N. Y. 
 
 EDWARD THOMPSON COMPANY 
 
 1914 
 
COPYRIGHT, [9t4, 
 
 BY 
 
 EDWARD THOMPSON COMPAJiry 
 
ATTORNEYS AT LAW 
 
 VOLUME II 
 
 CHAPTEK XVII. 
 
 ADVICE OP COUNSEL. 
 
 In General. 
 
 § 365. Scope of Chapter. 
 
 366. In Civil Actions Generally. 
 
 367. In Proceedings Charging Violation of Law. 
 
 368. In Proceedings for Contempt. 
 
 In Actions for Malicious Prosecution. 
 
 369. General Rule. 
 
 370. Reason of Rule. 
 
 371. Whether Advice of Counsel Shows Absence of Malice, or Existence of 
 
 Probable Cause. 
 
 372. Bona Fides in Seeking and Acting upon Advice. 
 
 373. Requisite Statement of Facts. 
 
 374. Necessity of Exercising Diligence to Discover Facta. 
 
 375. Requisites as to Advice Received. 
 
 376. Qualification of Attorney Consulted. 
 
 377. Advice of Prosecuting Attorney. 
 
 378. Advice of Persons Other than Attorneys. 
 
 In General. 
 
 § 365. Scope of Chapter. — This chapter is confined to a dis- 
 cussion of the principles governing the advice of counsel as a de- 
 fense generally. Elsewhere consideration has been given to the 
 duty of an attorney to advise and inform his client ^ fairly, hon- 
 estly, and disinterestedly ; ^ and to his liability for negligence in 
 
 ISee supra, § 155. SSee supra, §§ 152-163. 
 
 Attys. at L. Vol. II. — 40. 625 
 
626 ADVICE OF COUNSEL. [§ 366 
 
 this respect.' The effect of the opinion of an attorney-general as a 
 defense for the acts of public officials will be considered hereafter.* 
 
 § 366. In Civil Actions Generally. — It has been stated here- 
 tofore that the client is responsible to third persons for the au- 
 thorized acts of his attorney/ whose negligence while acting within 
 the scope of his authority will be imputed to the client; thus no 
 relief will be extended to one against whom a default judgment 
 has been entered because of the negligence of counsel.^ So, the 
 advice of counsel will not constitute a defense for the client's 
 torts.'' But where the client is charged with malice, the fact that 
 he acted in good faith upon the advice of counsel may be shown 
 in rebuttal thereof,* and in mitigation of exemplary damages ; ® 
 such evidence, however, is not received in bar of the action,^" or 
 in mitigation of actual damages. ^^ It has also been held that the 
 advice of counsel, sought and given in good faith, should be 
 received for the purpose of showing that persons serving in a 
 representative capacity acted honestly thereon; as where trustees 
 were charged with having erred in judgment, or in a matter of 
 law.^* So, also, the fact that a sheriff acted in good faith upon 
 the advice of his counsel, in proceeding under a writ of fieri facias, 
 
 8 See supra, § 315. Charles City Plow, etc., Co. v. Jones, 
 
 4 See infra, § 728. 73 Iowa 235, 32 N. W. 280. 
 
 sSee supra, §§ 303-304. 9 Chambers v. Upton, 34 Fed. 473; 
 
 6 See supra, § 318. See also Ames- Gramling-Spaulding Co. v. Parker, 3 
 
 toy Estate Co. v. Los Angeles, 5 Cal. Ala. App. 325, 57 So. 54; Coc]irane 
 
 App. 273, 90 Pac. 42; Winchester v. „. Tuttle, 75 111. 361; Eaver v. Web- 
 
 Grosvenor, 48 111. 517; Lowe v. Ham- ^t^j., 3 Iowa 502, 66 Am. Dec. 96; 
 
 ilton, 132 Ind. 406, 31 N. E. 1117; n ■„ * j .. t 4: mr ivj' oo<! 
 
 . ' . ' _ ' Gnmestad v. Lofgren, 105 Minn. 286, 
 
 117 N. W. 515, 127 Am. St. Rep. 566, 
 
 17 L.R.A.(N.S.) 990; Brown v. Mc- 
 
 Bride, 24 Misc. 235, 52 N. Y. S. 620. 
 
 "Cochrane v. Tuttle, 75 111. 361. 
 
 Shricker v. Field, 9 Iowa 366; 
 Mouser v. Harmon, 96 Ky. 591, 29 S. 
 W. 448; Burton v. Wiley, 26 Vt. 430. 
 
 T Chambers v. Upton, 34 Fed. 473; 
 Conn V. Rice, (C. C. A.) 204 Fed. 181; 
 Jasper v. Purnell, 67 111. 358; Raver "Jasper v. Purnell, 67 111. 358; 
 
 V. Webster, 3 Iowa 502, 66 Am. Dec. 96. Cochrane v. Tuttle, 75 111. 361 ; Raver 
 
 8 Hill V. Ward, 13 Ala. 310; Wood "■ Webster, 3 Iowa 502, 66 Am. Dec. 
 V. Etiwanda Water Co., 147 Cal. 228, 96; Young v. Gormley, 120 Iowa 372, 
 81 Pac. 512; Raver v. Webster, 3 94 N. W. 922. 
 
 Iowa 502, 66 Am. Dec. 96 ; Porter v. " Matter of Ball, 55 App. Div. 284, 
 
 Knight, 63 Iowa 366, 19 N. W. 282; 66 N. Y. S. 874. 
 
§ 367] ADVICE OF COUNSEL, 627 
 
 on a doubtful question, may be shown in defense of an action 
 against him for failing to collect on the writ ; and this is especially 
 true where the status of the execution plaintiff has not been 
 changed." One who sets up the advice of counsel as a defense 
 must, of course, prove that he made a full and fair statement of 
 the facts to the attorney; ^* should there be a conflict of evidence 
 in this respect, the question becomes one of fact for the jury.^* 
 Where the testimony is conflicting on the question of the liability 
 of defendant, the admission of testimony of plaintiff that before 
 suing defendant he consulted lawyers and was advised by them to 
 sue defendant and not another, is prejudicial error." 
 
 § 367. In Proceedings Charging Violation o£ Law. — 
 
 The general rule unquestionably is that the advice of counsel can 
 afford no protection against the punitive consequences of crimi- 
 nal acts.^^ Thus on a trial for murder for the killing of an officer 
 who attempted to dispossess the defendant by virtue of a writ of 
 possession, it was held to be proper to exclude evidence of the ad- 
 vice of counsel to the effect that under certain contingencies the 
 defendant could use force against force in order to maintain pos- 
 session of the land.'' So, evidence that an attorney had advised 
 the defendant in a criminal prosecution not to return to the state, 
 
 13 Green v. Jones, 39 Ga. 522. Compare People v. Slayton, 123 
 
 "Barnett v. 'State, 89 Ala. 165, 7 Mich. 397, 82 N. W. 205, 81 Am. St. 
 
 So. 414; Raver v. Webster, 3 Towa Rep. 211, wherein it was held that 
 
 502, 66 Am. Dec. 96. where the respondent, in a prosecu- 
 
 15 Charles City Plow, etc., Co. v. tion for larceny, claimed that he took 
 
 Jones, 71 Iowa 235, 32 N. W. 280. the property acting under the advice 
 
 18 Merchants' Nat. Bank v. Town- of counsel, believing it to belong to 
 
 send, (Tex.) 147 S. W. 617. another, it was error to instruct the 
 
 17 A labama. — Barnett v. State. 89 jury that the advice of counsel, ta 
 
 Ala. 165, 7 So. 414. be available as a defense, must have 
 
 'New York. — People v. Kane, 60 been given upon a statement of all 
 
 Hun 585 mem., 15 N. Y. S. 612. the facts; the limitation recognized 
 
 Permsjflvama. — Weston v. Com., Ill in actions of malicious prosecution 
 
 Pa. St. 251, 2 Atl. 191. being inapplicable on a trial for lar- 
 
 Rhode Island. — See State v. Hunt, eeny, where such advice had no sig- 
 
 25 R. I. 75, 54 Atl. 937. nificance except as a circumstance 
 
 Tecoas. — Smith i\ State, 46 Tex. bearing on the good faith of the re- 
 
 Crim. 267, 81 S. W. 936, 108 Am. St. spondent. 
 
 Rep. 991. 18 Smith v. State, 46 Tex. Crim. 
 
628 ADVICE OF COUNSEL. [§ 367 
 
 is not admissible to explain his absence therefrom.^' The mere 
 fact that counsel suggested or advised the making of a false oath 
 is no defense to a charge of perjury predicated thereon ; *" but if 
 the facts are fully and in good faith laid before counsel, and upon 
 them he advises, as a matter of law, that a certain statement may 
 be made which will be the truth, and, honestly acting on this ad- 
 vice, the client swears to the statement, believing that he has been 
 correctly advised, it cannot be said that the oath so taken is wil- 
 fully and corruptly false, and hence a charge of perjury cannot 
 be predicated upon it.' So also the failure of a bankrupt to 
 schedule, or to turn over to the trustee, certain assets, upon the 
 advice of counsel, to whom the facts have been fully disclosed, and 
 whose advice is sought, received, and acted upon in good faith, 
 and not with the intention of evading the bankruptcy law, will not 
 bar his discharge * under section 14 b (4) of the Bankruptcy Act, 
 which imposes such punishment for the removal, destruction, or 
 concealment of property by the bankrupt for the purpose of hinder- 
 ing, delaying or defrauding his creditors.* Thus where the ques- 
 tion whether a bankrupt's interest in his grandfather's estate was 
 vested or contingent was difficult of solution, and the bankrupt had 
 
 267, 81 S. W. 936, 108 Am. St. Rep. 2 In re Hansen, 107 Fed. 252, 5 Am. 
 
 991, following Gallaher v. State, 28 Bankr. Eep. 747; In re Stoddart, 114 
 
 Tex. App. 247, 12 S. W. 1087. And I'ed. 486, 7 Am. Bankr. Rep. 762; In 
 
 see State v. Orraye, (N. J.) 87 Atl. re Breitling, 133 Fed. 146, 66 C. C. 
 
 121, where the same rule was applied ^- 212, 13 Am. Bankr. Rep. 126; 
 
 to one seeking under advice of coun- Woods v. Little, 134 Fed. 229, 67 C. 
 
 sel forcibly to take possession of land. ^- ^- l^^' ^^ Am. Ba^kr. Rep. 742; 
 
 19 Aiken V. Com., 68 S. W. 849, 24 ^"^ '^ ^^^1^' 1^4 Fed. 667, 12 Am. 
 KIT? '52'? Bankr. Rep. 407; Remmers v. Mer- 
 
 on-iir'iu^' oi. 'j. ,rr 1 ic^a w chants'-Laclede Nat. Bank, 173 Fed. 
 
 20 Welch .. State, (Tex.) 157 S. W. ^^^^ ^^ ^_ ^ ^ ^^^^ ^3 ^ ^^^^^ 
 
 ^^^- Rep. 78; In re Kyte, 174 Fed. 867, 
 
 lU.S. U.Conner, 3 McLean 573, 25 23 Am. Bankr. Rep. 414; In re 
 
 Fed. Cas. No. 14,847; U. S. v. Stan- gchreck, 1 Am. Bankr. Rep. 36G; In 
 
 ley, 6 McLean 409, 27 Fed. Cas. No. j.^ Berner, 4 Am. Bankr. Rep. 383; 
 
 16,376; Hood V. State, 44 Ala. 81; in re Schofield, 17 Am. Bankr. Rep. 
 
 Barnett v. State, 89 Ala. 165, 7 So. 9] 8; In re AUeman, 20 Am. Bankr. 
 
 414; State v. McKinney, 42 Iowa Rep. 745. 
 
 205; Com. V. Clark, 157 Pa. St. 257, s Fed. Stat. Annot. Supp. 1912 p. 
 
 27 Atl. 723. 562. 
 
§ 368] ADVICE OF COUNSEL, 629 
 
 previously been advised by couDsel that he had no interest in his 
 grandfather's estate on which he could raise money, it was held 
 that his failure to schedule such interest as a part of his estate in 
 bankruptcy did not preclude his discharge.* And where a bank- 
 rupt had borrowed the full surrender value on his life insurance, 
 and had been advised by counsel that it was not necessary to men- 
 tion the policies in his schedules, whereupon he gave them to his 
 wife, it was held that he was not guilty of a fraudulent conceal- 
 ment of assets." 
 
 § 368. In Proceedings for Contempt. — It is well settled 
 that the advice of counsel is not a complete defense in proceedings 
 for contempt. Cases of this character usually arise where injunc- 
 tion orders have been violated, but the principle stated is appli- 
 cable in all proceedings for contempt.^ Similar rulings have been 
 made where, under the advice of counsel, one refuses to obey a sub- 
 poena,'' or to testify.' But, when properly presented, the court 
 will, as a general rule, take into consideration the statement that 
 one charged with contempt of court acted in good faith under the 
 advice of counsel to whom he made a full and fair statement of 
 
 4 Woods V. Little, 134 Fed. 229, 67 New Jersey.— Cape May, etc., R. 
 C. C. A. 157, 13 Am. Bankr. Eep. Co. v. Johnson, 35 N. J. Eq. 422 
 742. New York. — Hawley v. Bennett, 4 
 
 5 In re Kyte, 174 Fed. 867, 23 Am. Paige 163; Rogers v. Paterson, 4 
 Bankr. Rep. 414. Paige 450; Capet v. Parker, 3 Sandf. 
 
 6 United States. — Pokegama Sugar 662 ; People v. Rice, 144 N. Y. 249, 
 Pine Lumber Co. v. Klamath River 39 N. E. 88; Cianeimino's Towing, 
 Lumber, etc., Co., 86 Fed. 538; Rog- etc., Co. v. Ciancimino, 62 Hun 623 
 ers V. Pitt, 89 Fed. 424. mem., 17 N. Y. S. 125. 
 
 Florida. — Continental Nat. Bldg., North Carolina. — Green v. Griffin, 
 
 etc., Assoc. V. Scott, 41 Fla. 421, 26 95 N. C. 50; Weston v. John L. Roper 
 
 So. 726. Lumber Co., 158 N. C. 270, Ann. Cas. 
 
 Georgia.— Smith, v. Cook, 39 Ga. 1913D 373, 73 S. E. 799. 
 
 191. 7 People V. Reid, 139 App. Div. 551, 
 
 Iowa. — Lindsay v. Hatch, 85 Iowa 124 N. Y. S. 205; People v. St. Louis, 
 
 332, 52 N. W. 226; Carr v. District etc., E. Co., 19 Abb. N. Cas. (N. Y.) 
 
 Court, 147 Iowa 663, Ann. Cas. 1. 
 
 1913D 378, 126 N. W. 791. 8 Reynolds v. Parkes, 2 Dem. (N. 
 
 Michigan.— Cha.pel v. Hull, 60 Y.) 399. See also Gihon v. Albert, 7 
 
 Mich. 167, 26 N. W. 874. Paige (N. Y.) 278. 
 
630 
 
 ADVICE OF COUNSEL. 
 
 [§ 368 
 
 the facts.' The purpose of such consideration is to ascertain 
 whether, in view of the facts, the punishment should be miti- 
 gated.^" The extent of the palliation thus afforded depends upon 
 the character of the advice and the circumstances under which it 
 was given; *' it will not, however, be carried so far as to relieve 
 the offender from compensating the adverse party for such loss as 
 he may have sustained in consequence of the contempt.*^ Where 
 the court is satisfied that there was no intentional wrong, and 
 that no injury was done, the fact that the contempt was committed 
 because of the offender's reliance on the advice of counsel will, as 
 a rule, be deemed a good excuse, or, at least, to merit only the im- 
 position of a nominal fine ; ^' and this is especially true where the 
 
 9 People V. St. Louis, etc., E. Co., 
 19 Abb. N. Cas. (N. Y.) 1; People 
 r. Rice, 144 N. Y. 249, 39 N. E. 88; 
 Ciancimino's Towing, etc., Co. v. Cian- 
 cimino, 62 Hun 623 mem., 17 N. Y. 
 S. 125; In re Lizotte, 32 R. I. 386, 
 79 Atl. 960, 35 L.R.A.(N.S.) 794. 
 
 10 United States. — Matthews v. 
 Spangenberg, 15 Fed. 813; Pokegama 
 Sugar Pine Lumber Co. v. Klamath 
 River Lumber, etc., Co., 86 Fed. 538; 
 Rodgers v. Pitt, 89 Fed. 424; Royal 
 Trust Co. V. Washburn, etc., R. Co., 
 113 Fed. 531. See also In re Watts, 
 190 U. S. 1, 23 S. Ct. 718, 47 U. S. 
 (L. ed.) 933, 10 Am. Bankr. Rep. 113; 
 U. S. V. Goldstein, 132 Fed. 789, 12 
 Am. Bankr. Rep. 755; In re Zier, 
 142 Fed. 102, 73 C. C. A. 326, 15 
 Am. Bankr. Rep. 646; In re Home 
 Discount Co., 147 Fed. 538, 17 Am. 
 Bankr. Rep. 168; Orr v. Tribble, 158 
 Fed. 897, 19 Am. Bankr. Rep. 849; 
 In re Strobel, 163 Fed. 380, 20 Am. 
 Bankr. Rep. 754. 
 
 Iowa. — Coffey v. Gamble, 117 Iowa 
 545, 91 N. W. 813. 
 
 TXew York. — People v. St. Louis, 
 etc., R. Co., 19 Abb. N. Cas. 1; Lan- 
 sing V. Easton, 7 Paige 364; Stolts 
 
 V. Tuska, 82 App. Div. 81, 81 N. Y. 
 S. 638; Ciancimino's Towing, etc., Co. 
 V. Ciancimino, 62 Hun 623 mem., 17 
 N. Y. S. 125. 
 
 North Carolina. — Weston v. John L. 
 Roper Lumber Co., 158 N. C. 270, 
 Ann. Cas. 1913D 373, 73 S. E. 799. 
 
 South Carolina. — Columbia Water 
 Power Co. v. Columbia, 4 S. C. OSS. 
 
 11 State V. Harper's Ferry Bridge 
 Co., 16 W. Va. 864. 
 
 12 Power V. Athens, 19 Hun (N. 
 Y.) 165; New York Mail, etc., Transp. 
 Co. V. Shea, 30 App. Div. 374, 52 N. 
 Y. S. 5, reversing 23 Misc. 15, 49 
 N. Y. S. 951; Lansing v. Easton, 7 
 Paige (N. Y.) 364. 
 
 13 United States. — Denver, etc., R. 
 Co. V. Atchison, etc., R. Co., 5 Mc- 
 Crary 287; Roberts v. Walley, 14 
 Fed. 167; In re Fixen, 96 Fed. 748, 
 2 Am. Bankr. Rep. 822. 
 
 New Jersey. — Fraas v. Barlement, 
 25 N. J. Eq. 84. 
 
 North Carolina. — See Green v. Grif- 
 fin, 95 N. C. 50. 
 
 Texas. — Ex p. Ryan, 62 Tex. Grim. 
 19, 136 S. W. 65. 
 
 Virginia. — ^Weiis v. Com., 21 Grat. 
 500. 
 
§ 369] ADVICE OF COUNSEL. G31 
 
 court entertains any doubt as to whether there waSj in fact, a con- 
 tempt committed.^* Thus where a sheriff, who was charged with 
 contempt of court in failing to execute the process thereof, shows 
 that he was trying to ascertain the law, and to do his duty with 
 the process, he should not be punished for contempt. ^° In pre- 
 senting the defense of having acted on the advice of counsel, the 
 name of the counsel should be given, together with the information 
 that was laid before him, and the exact import of his advice. If 
 the advice was written, the writing should be produced ; if oral, 
 the fact that it was given, and its precise import, should be veri- 
 fied by the affidavits of the counsel who gave it. The propriety of 
 these rules, and the necessity of adhering to them, will be doubted 
 by none who have any knowledge of the difficulties that beset a 
 court in the due administration of its justice, and of the means 
 too frequently employed to evade its authority.'^ 
 
 In Actions for Malicious Prosecution. 
 
 § 369. General Rule. — It is a rule of universal application 
 in suits for malicious prosecution that the defendant may show in 
 defense the fact that, prior to the institution of the proceedings 
 which are alleged to have been malicious, he consulted a compe- 
 tent attorney to whom he made a full and accurate statement of 
 the facts in good faith, and that the prosecution was instituted in 
 reliance on the advice received by the defendant from the attorney 
 so consulted. In most jurisdictions uncontradicted evidence of 
 this character will be deemed to be a complete defense." Persons 
 
 14 Mutual Milk & Cream Co. v. isHarrell v. Feagin, 59 Ga. 821. 
 
 Tietjen, 73 App. Div. 532, 77 N. Y. See also Ex p. Ryan, 62 Tex. Crim. 
 
 S. 287. 19, 136 S. W. 65. 
 
 In Matter of Granz, 78 App. Div. 16 People v. Compton, 1 Duer (N. 
 
 399, 79 N. Y. S. 899, affirming 38 Y.) 512. 
 
 Misc. 666, 78 N. Y. S. 260, it was " ^wpZarM?.— Ravenga v. Maekin- 
 said: "It is only when there is a tosh, 2 B. & C. 693, 9 E. C. L. 225. 
 question as to whether the act com- Canada. — See Lake of the Woods 
 plained of is actually a violation of Milling Co. v. Ralston, 20 Quebec K. 
 the injunction that advice of counsel B. 536; Prentiss t. Anderson Log- 
 can 'be accepted as an excuse. No ging Co., 16 British Columbia 289; 
 such question is presented in this Harris v. Hickey, 19 West. L. Rep. 
 case." (British Columbia) 948; Dundas v. 
 
632 
 
 ADVICE OF COUNSEL. 
 
 [§ 369 
 
 learned in the law are the proper advisers of men in doubtful cir- 
 cumstances; and their advice, vrhen fairly obtained, exempts the 
 
 Wilson, 19 Ont. W. Rep. 17, 2 Ont. 
 W. N. 995; Meaney v. Reid-New- 
 foundland Co., 39 Nova Scotia 407. 
 
 United Statis. — Stewart v. Sonne- 
 born, 98 U. S. 187, 25 U. S. (L. ed.) 
 116; Coggswell V. Bohn, 43 Fed. 411; 
 Staunton v. Goshorn, 94 Fed. 52, 36 
 C. C. A. 75; Cragin v. De Pape, 159 
 Fed. 691, 86 C. C. A. 559. 
 
 Alabama. — Cliandler v. McPherson, 
 11 Ala. 916; Leaird v. Davis, 17 Ala. 
 27; Jordan v. Alabama G. S. R. Co., 
 81 Ala. 220, 8 So. 191; Shannon v. 
 Simma, 146 Ala. 673, 40 So. 574; 
 Goldstein v. Drysdale, 148 Ala. 486, 
 42 So. 744; Stewart v. Blair, 171 Ala. 
 147, Ann. Cas. 1913A 925, 54 So. 
 506. 
 
 Arhansas. — ^Kansas, etc., Coal Co. 
 V. Galloway, 71 Ark. 351, 74 S. W. 
 521, 100 Am. St. Rep. 79; L. B. 
 Price Mercantile Co. v. Cuilla, 100 
 Ark. 316, 141 S. W. 194. 
 
 California. — Jones v. Jones, 71 Cal. 
 89. 11 Pac. 817; Johnson v. South- 
 ern Pac. Co., 157 Cal. 333, 107 Pac. 
 611. 
 
 Colorado. — Whitehead v. Jessup, 2 
 Colo. App. 76, 29 Pac. 916. 
 
 Delaware. — Plummer v. Collins, 1 
 Boyce 281, 77 Atl. 750. 
 
 District of Golunibia. — Staples v. 
 Johnson, 25 App. Cas. 155. 
 
 Florida. — Florida East Coast R. 
 Co. V. Groves, 55 Fla. 436, 46 So. 294. 
 
 Illinois. — Wicker v. Hotchkisa. 62 
 111. 107, 14 Am. Rep. 75; Anderson 
 V. Friend, 71 111. 475; Morrow v. 
 Games, 108 111. App. 621; Conkling 
 V. Whitmore, 132 111. App. 574; Fitz- 
 simmons v. Mason, 135 111. App. 565; 
 McClain v. C. F. Adams Co., 143 111. 
 App. 77. 
 
 Indiana. — Indianapolis Traction, 
 etc., Co., V. Henby, 97 N. E. 313. 
 
 Iowa. — Greenlee v. Ealy, 145 Iowa 
 394, 124 N. W. 166. 
 
 Kamsas. — Schippel v. Norton, 38 
 Kan. 567, 16 Pac. 804; Atchison, T., 
 etc., R. Co. V. Brown, 57 Kan. 785, 
 48 Pac. 31. 
 
 Kentucky. — Nance v. Cash, 143 Ky. 
 358, 136 S. W. 619; Mesker v. Me- 
 Cort, 44 S.' W. 975; National L., etc., 
 Ins. Co. V. Gibson, 101 S. W. 895. 
 
 Louisiana.— Gould v. Gardner, 8 
 La. Ann. 12; Phillips v. Bonham, 16 
 La. Ann. 387; Sandoz v. Veazie, 106 
 La. 202, 30 So. 767; Gates v. Union 
 Sawmill Co., 122 La. 437, 47 So. 
 761 ; Hammar v. Atkins, 124 La. 897, 
 50 So. 787. 
 
 Maine. — Watt v. Corey, 76 Me. 87. 
 
 Massachusetts. — Stone v. Swift, 4 
 Pick. 389, 16 Am. Dec. 349; Allen 
 V. Codman, 139 Mass. 136, 29 N. E. 
 537; Monaghan v. Cox, 155 Mass. 
 487, 30 N. E. 467, 31 Am. St. Rep. 
 555. 
 
 Michigan. — Gallaway v. Burr, 32 
 Mich. 332; Fletcher v. Chicago, etc., 
 R. Co., 109 Mich. 363, 67 N. W. 330; 
 Fowles V. Hayden, 129 Mich. 586, 89 
 N. W. 339; Slater v. Walter, 148 
 Mich. 650, 112 N. W. 682. 
 
 Minnesota. — Moore v. Northern 
 Pac. R. Co., 37 Minn. 147; Shea v. 
 Cloquet Lumber Co., 92 Minn. 348, 
 1 Ann. Cas. 930, 100 N. W. 111. 
 
 Nebraska. — Jensen v. Halstead, 61 
 Neb. 249, 85 N. W. 78; Duffy v. 
 Scheerger, 91 Neb. 511, 136 N. W. 
 724. 
 
 Nevada. — Ricord v. Central Pae. 
 R. Co., 15 Nev. 169. 
 
§ aG9]' 
 
 ADVICE OF OOUNSEL. 
 
 633 
 
 party who acts upon it from the imputation of proceeding ma- 
 liciously and without probable cause.*' If the defendant is not in 
 fault, but is advised upon a statement of facts fairly presented by 
 him to a professional man whose candor and skill he has no reason 
 to doubt, the advice received will be a sufficient protection for him, 
 even though it is erroneous and not warranted by the facts pre- 
 sented.*^ This defense is an affirmative one, and it is incumbent 
 
 Ohio. — Eihlert v. GommoU, 23 
 Ohio Cir. Ct. Rep. 586. 
 
 Oklahoma. — El Eeno Gas, etc., Co. 
 (.'. Spurgeon, 30 Okla. 88, 118 Pac. 
 397. 
 
 Penmsylvania. — Replogle v. Froth- 
 ingham, 16 Pa. Super. Ct. 374; 
 Thomas v. Painter, 10 Phila. 409, 32 
 Leg. Int. 90. 
 
 Rhode Island. — Bartlett v. Brown, 
 6 R. I. 37, 75 Am. Dee. 675; Newton 
 V. Weaver, 13 R. I. 616. 
 
 South Dakota. — Krause v. Bishop, 
 18 S. D. 298, 100 N. W. 434. 
 
 Tennessee. — Cooper v. Flemming, 
 114 Tenn. 40, 84 S. W. 801, 68 L.R.A. 
 849. 
 
 Texas. — E. F. Scott Grocer Co. v. 
 Kelly, 14 Tex. Civ. App. 136, 36 S. W. 
 140. 
 
 Utah. — McKenzie v. Canning, 131 
 Pac. 1172. 
 
 Vermont. — St. Johnsbury, etc., R. 
 Co. V. Hunt, 59 Vt. 294, 7 Atl. 277. 
 
 Virginia. — Saunders v. Baldwin, 112 
 Va. 431, Ann. Cas. 1913B 1049, 71 
 S. E. 620, 34 L.R.A.(N.S.) 958. 
 
 Wisconsin. — King v. Apple River 
 Power Co., 131 Wis. 575, 11 Ann. 
 Cas. 951, 111 N. W. 668, 120 Am. 
 St. Rep. 1063; Topolewski v. Plank- 
 inton Packing Co., 143 Wis. 52, 126 
 N. W. 554. 
 
 Wyoming. — Boyer v. Bugher, 19 
 Wyo. 463, 120 Pac. 171. 
 
 "Steed V. Knowles, 79 Ala. 446. 
 And see the two following sections. 
 
 19 Alabama. — Jordan v. Alabama G. 
 S. R. Co., 81 Ala. 220, 8 So. 191; 
 Abingdon Mills v. Grogan, 167 Ala. 
 146, 52 So. 596. 
 
 Colorado.— Yslh Meter v. Bass. 40 
 Colo. 78, 90 Pac. 637, 18 L.R.A.(N.S.) 
 49. 
 
 Indiana. — Indianapolis Traction, 
 etc., Co. V. Henby, 97 N. E. 313. 
 
 Kentucky. — Gatz v. Harris, 134 
 Ky. 550, 121 S. W. 463. 
 
 Michigan. — Kompass v. Light, 122 
 Mich. 86, 80 N. W. 1008; Fleckinger 
 V. TaSee, 149 Mich. 678, 113 N. W. 
 311. 
 
 Minnesota. — Nelson v. Internation- 
 al Harvester Co., 117 Minn. 298, 135 
 N. W. 808. 
 
 New York. — Richardson v. Virtue, 
 2 Hun 208; Hall V. Suydam, 6 Barb. 
 83. 
 
 Ohio. — Johnson v. McDaniel, 5 Ohio 
 Dec. 717. 
 
 Pennsylvania. — Walter v. Sample, 
 25 Pa. St. 275. 
 
 Rhode Island. — Bartlett v. Brown, 
 6 R. I. 37, 75 Am. Dec. 675. 
 
 Tennessee. — Cooper v. Flemming, 
 114 Tenn. 40, 84 S. W. 801, 68 L.R.A. 
 849. 
 
 West Virginia. — Catzen v. Belcher, 
 64 W. Va. 314, 16 Ann. Cas. 715, 61 
 S. E. 930, 131 Am. St. Rep. 903. 
 
634 
 
 ADVICE OF COUNSEL. 
 
 [§ 369 
 
 on the defendant to establish it,*" its value being dependent upon 
 the honesty and intelligence of the adviser, and the circumstances 
 under which it was obtained.^ If the facts essential to the defense 
 are in dispute, they are to be submitted to the jury.^ So, the 
 question of collusion between the attorney and his client in these 
 cases can as safely be left to the jury as can the question of col- 
 lusion and fraud in other cases.^ Where the facts are undisputed 
 the court will usually decide, as a matter of law, whether they 
 amount to a sufficient defense to the action.* In some jurisdic- 
 tions, however, the fact that the defendant acted in good faith on 
 the advice of counsel is not considered a complete defense to an 
 action for malicious prosecution, but merely a circumstance to be 
 taken into consideration by the jury as tending to show the ab-* 
 sence of malice, or the existence of probable cause, or both ; * but, 
 even where this rule is recognized, it has been held that acting on 
 the advice of the public prosecutor will, of itself, constitute an in- 
 dependent and complete defense.® 
 
 20Barhight v. Tammany, 158 Pa. 
 St. 545, 28 Atl. 135, 38 Am. St. Rep. 
 853; Humphreys v. Mead, 23 Pa. 
 Super Ct. 415. 
 
 1 Clement v. Major, 8 Colo. App. 
 86, 44 Pac. 776. 
 
 2 Hicks V. Brantley, 102 Ga. 264, 
 29 S. E. 459; Monaghan v. Cox, 155 
 Mass. 487, 30 N. E. 467, 31 Am. St. 
 Eep. 555; LeCIear v. Perkins, 103 
 Mich. 131, 61 N. W. 357, 26 L.R.A. 
 627; Hogg v. Pinckney, 16 S. C. 388. 
 
 8 Gillispie v. Stafford, 4 Neb. (un- 
 official) Eep. 873, 96 N. W. 1039. 
 
 4 Nance v. Cash, 143 Ky. 358, Ann. 
 Cas. 1912D 422, 136 S. W. 619; 
 Krause v. Bishop, 18 S. D. 293, 100 
 N. W. 434. 
 
 B Alabama. — Abingdon Mills v. Gro- 
 gan, 57 So. 42. 
 
 Arkansas. — Lemay v. Williams, 32 
 Ark. 166. 
 
 Georgia. — Fox v. Davis, 55 Ga. 298. 
 
 Indiana. — Lytton v. Baird, 95 Ind. 
 349; Atkinson v. Van Cleave, 25 Ind. 
 
 App. 508, 57 N. E. 731; Sasse v. 
 Rogers, 40 Ind. App. 197, 81 N. E. 
 590. 
 
 loxoa. — Mesher v. Iddings, 72 Iowa 
 553, 34 N. W. 328. 
 
 Hew York. — Laird v. Taylor, 66 
 Barb. 139. 
 
 North Carolina. — Beal v. Robeson, 
 30 N. C. 276; Davenport v. Lynch, 
 51 N. C. 545 ; Smith v. Eastern Bldg., 
 etc., Assoc, 116 N. C. 74, 20 S. E. 
 963; Downing v. Stone, 152 N. C. 
 525, 21 Ann. Cas. 753, 68 S. E. 9, 
 136 Am. St. Rep. 841. 
 
 Pennsylvania. — Bell v. Atlantic 
 City R. Co., 202 Pa. St. 178, 51 Atl. 
 600; Humphreys v. Mead, 23 Pa. 
 Super. Ct. 415. 
 
 Texas. — Ramsey v. Arrott, 64 Tex. 
 320; Gulf, etc., R. Co. v. James, 73 
 Tex. 12, 10 S. W. 744, 15 Am. St. 
 Rep. 743. 
 
 6 Sebastian v. Cheney, 86 Tex. 502, 
 25 S. W. 692; Missouri, etc., R. Co. 
 V. Groseolose, 50 Tex. '~'iv. App. 525, 
 
§ 370] ADVICE OF COUNSEL. 635 
 
 § 370. Reason of Rule. — The ground upon whicli the 
 opinion of an attorney may be shown as an excuse for bringing a 
 prosecution is that he is an officer of the court, held out to the pub- 
 lic as one learned in the law, and that, because thereof, a client 
 has a right to presume that he will give him a fair, unbiased, and 
 well-grounded opinion as to his legal rights.' This is true from 
 the very nature of our criminal laws; otherwise there would be 
 no safety in originating such proceedings. As the criminal law 
 must be enforced, and human agencies must be employed for that 
 purpose, the law wisely protects all persons who in good faith act 
 on reasonable presumptions of the guilt of the accused ; and where 
 the prosecution is commenced on the advice of competent counsel, 
 after fairly presenting to his consideration all the facts, it cannot, 
 in the nature of things, be held that such prosecution is ground- 
 less or malicious.' It is not the advice, however, which rebuts the 
 presumption of malice, but the innocence of the defendant's con- 
 duct, of which his seeking advice is merely evidence ; and whether 
 the advice is a good defense depends upon the good faith with 
 which it is sought and followed.® Thus a defendant in an action 
 for malicious prosecution, being himself a lawyer and acting as 
 his own adviser in the matter, cannot shelter himself behind his 
 
 i:0 S. W. 477. And see infra, § 8 United States. — Miller v. Chicago, 
 
 377. M. & St. P. E. Co., 41 Fed. 898. 
 
 1 United States. — Burnap v. Albert, Alabama. — Steed v. Knowles, 79 
 
 Taney 244, 4 Fed. Gas. No. 2,170. Ala. 446. 
 
 Maine. — White v. Carr, 71 Me. 555, Illinois. — ^Anderson v. Friend, 85 
 
 36 Am. Rep. 533. 111. 135. 
 
 Massachusetts.—WildeT v. Holden, Michigan. — Stanton v. Hart, 27 
 
 24 Pick. 8. Mich. 539. 
 
 Michigan. — Perry v. Sulier, 92 South Dakota. — Krause v. Bishop, 
 
 Mich. 72, 52 N. W. 801. 18 S. D. 298, 100 N. W. 434. 
 
 Oklahoma. — El Reno Gaa, etc.. Co. Texas. — Ramsey v. Arrott, 64 Tex. 
 
 V. Spurgeon, 30 Okla. 88, 118 Pac. 320. 
 
 397. Wisconsin. — King v. Apple River 
 
 Rhode Island. — Bartlett v. Brown, Power Co., 131 Wis. 575, 11 Ann. 
 
 6 R. I. 37, 75 Am. Dec. 675. Cas. 951, 111 N. W. 668, 120 Am. 
 
 South Dakota. — Krause v. Bishop, St. Rep. 1063; Topolewaki v. Plank- 
 
 18 S. D. 298, 100 N. W. 434. inton Packing Co., 143 Wis. 52, 126 
 
 Virginia. — Saunders v. Baldwin, N. W. 554. 
 
 112 Va. 431, Ann. Cas. 1913B 1049, 9 Smith r. Walter, 125 Pa. St. 453, 
 
 71 S. E. 620, 34 L.R.A.(N.S.) 958. 17 Atl. 466. 
 
636 ADVICE OF COUNSEL. [§ 371 
 
 own advice as counsel ; '" but the fact that the defendant is an at- 
 torney does not prevent him from setting up, in defense, that he 
 acted upon the advice of another lawyer whom he consulted, and 
 to whom he made a full and accurate statement of the facts. '^ 
 
 § 371. Whether Advice of Counsel Shows Absence of 
 Malice, or Existence of Probable Cause. — Many of the cases 
 which pass upon the effect of having acted in good faith under the 
 advice of competent counsel show a conflict of opinion as to wheth- 
 er such advice is to he considered as establishing the absence of 
 malice on the part of the defendant, or as showing the existence 
 of probable cause for the institution of the proceeding upon which 
 the action for malicious prosecution is predicated. A consider- 
 able number insist that the proper effect of the advice is to show 
 the absence of malice,''^ while an equal, and possibly a greater, 
 number of adjudicated eases assert that the advice of counsel tends 
 to show the existence of probable cause. ^* The effect, however, is 
 the same, no matter which of these views may be adopted ; that is, 
 in either case, the fact that a proceeding was commenced in good 
 
 10 Epstein v. Berkowsky, 64 111. em Bldg., etc., Assoc, 116 N. C. 73, 
 
 App. 498. 20 S. E. 963; Thurber v. Eastern 
 
 llTerre Haute & I. R. Co. v. Ma- Bldg., etc., Assoc, 116 N. C. 75, 21 
 
 son, 148 Ind. 578, 46 N. E. 332. S. B. 193; Pittsburg, etc., R. Co. v. 
 
 12 United States. — Brewer v. Jacobs, Wakefield Hardware Co., 143 N. 0. 
 
 22 Fed. 217. 54, 55 S. E. 422. 
 
 Illinois. — Chicago, R. I. & P. R. Ohio. — Johnson v. McDaniel, 5 Ohio 
 
 Co. V. Pierce, 98 111. App. 368. Dec. 717. 
 
 Indiana. — ^Lytton v. Baird, 95 Ind. Pennsylvania. — Sommer ?'. Wilt, 4 
 
 349; Wright v. Hanna, 98 Ind. 217. Serg. & R. 24; Emerson v. Cochran, 
 
 ^(Misas.— Atchison, T. & S. F. R. Ill Pa. St. 619, 4 Atl. 498; Smith 
 
 Co. V. Brown, 57 Kan. 785, 48 Pac. v. Walter, 125 Pa. St. 453, 17 Atl. 
 
 31. 466; Baker v. Moore, 29 Pa. Super. 
 
 Louisiana. — Womack v. Fudikar, 47 Ct. 301. 
 
 La. Ann. 33, 16 So. 645. ^3 Arkansas. — ^L. B. Price Mercan- 
 
 Maryland.—TuTnei v. Walker, 3 tile Co. v. Cuilla, 100 Ark. 316, 141 
 
 Gill & J. 377, 22 Am. Dec 329. S. W. 194. 
 
 Missouri. — Sparling v. Conway, 75 California. — Levy v. Brannan, 39 
 
 Mo. 510; Smith v. Glynn, 144 S. W. Cal. 485; Johnson v. Southern Pac 
 
 149. Co., 157 Cal. 333, 107 Pac. 611. 
 
 North GarolirM. — Davenport v. District of Columbia. — Porter v. 
 
 Lynch, 51 N. C. 545; Smith v. East- White, 5 Mackey 180. 
 
371] 
 
 ADVICE OF COUNSEL. 
 
 637 
 
 faith on the advice of competent counsel, to whom a full and accu- 
 rate statement of the facts was made, will constitute a good de- 
 fense to an action for malicious prosecution; and, proceeding on 
 this theory, many eases hold that such advice, so acted upon, tends 
 to prove both the absence of malice and the existence of probable 
 cause.^* Strictly speaking, it would seem that taking advice of 
 counsel and acting thereon rebuts the inference of malice arising 
 from the want of probable cause. ^^ 
 
 Indiana. — Henderson v. McGriider, 
 49 Ind. App. 682, 98 N. E. 137. 
 
 loioa. — Dorr Cattle Co. v. Des 
 Moines Nat. Bank, 127 Iowa lf53, 98 
 N. W. 918. 
 
 Michigan. — Poupard v. Dumas, 105 
 Mich. 326, 63 N. W. 301; Le Clear 
 V. Perkins, 103 Mich. 131, 61 N. W. 
 357, 26 L.E.A. 627; Pawlowski v. 
 Jenks, 115 Mich. 275, 73 N. W. 238; 
 Smith V. Tolan, 158 Mich. 89, 122 
 N. W. 513. 
 
 Missouri. — Sharpe v. Johnston, 59 
 Mo. 557. 
 
 New York. — Richardson v. Virtue, 
 2 Hun 208; Hall v. Suydam, 6 Barb. 
 83. 
 
 Oklahoma. — El Reno Gas, etc., Co. 
 V. Spurgeon, 30 Okla. 88, 118 Pae. 
 397. 
 
 Oregon. — Hess v. Oregon German 
 Baking Co., 31 Ore. 503, 49 Pac. 803. 
 
 Pennsylvania. — Walter v. Sample, 
 25 Pa. St. 275; Fisher v. Forrester, 
 33 Pa. St. 501; Baker v. Moore, 29 
 Pa. Super. Ct. 301. 
 
 Rhode Island. — Bartlett v. Brown, 
 6 R. I. 37, 75 Am. Dec. 675. 
 
 Tennessee. — Cooper v. Flemming, 
 114 Tenn. 40, 84 S. W. 801, 68 L.R.A. 
 849. 
 
 Vermont. — St. Johnsbury, etc., R. 
 Co. V. Hunt, 59 Vt. 294, 7 Atl. 277. 
 
 Virginia. — Saunders v. . Baldwin, 
 112 Va. 431, Ann. Cas. 1913B 1049, 
 71 S. E. 620, 34 L.R.A. (N.S.) 958. 
 
 Washington. — Simmons v. Gardner, 
 46 Wash. 282, 89 Pac. 887; Anderson 
 V. Seattle Lighting Co., 71 Wash. 155, 
 127 Pac. 1108. 
 
 Wisconsin. — King v. Apple River 
 Power Co., 131 Wis. 575, 11 Ann. Cas. 
 951, 111 N". W. 668, 120 Am. St. Rep. 
 1063. 
 
 a Alabama. — Steed v. Knowles, 79 
 Ala. 446; Jordan v. Alabama G. S. 
 R. Co., 81 Ala. 220, 8 So. 191; O'Neal 
 V. McKinna, 116 Ala. 606, 22 So. 905. 
 
 Georgia. — Fox v. Davis, 55 Ga. 
 298. 
 
 Illinois. — Palmer v. Richardson, 70 
 111. 544; Skidmore v. Briclier, 77 111. 
 167. 
 
 Indiana. — Flora v. Russell, 138 
 Ind. 153, 37 N. E. 593. 
 
 Louisiana. — Sandoz v. Veazie, 106 
 La. 202, 30 So. 767. 
 
 Maine. — Soule v. Winslow, 66 Me. 
 447. 
 
 Michigan. — Slater v. Walter, 148 
 Mich. 650, 112 N. W. 682. 
 
 New Hampshire. — Eastman v. Kea- 
 sor, 44 N. H. 518. 
 
 Oklahoma. — El Reno Gas, etc., Co. 
 V. Spurgeon, 30 Okla. 88, 118 Pac. 
 397. 
 
 Wisconsin. — Strehlow v. Pettit, 90 
 Wis. 22, 71 N. W. 102. 
 
 15 McClafferty v. Philp, 151 Pa. St. 
 86, 24 Atl. 1042; Replogle v. Froth- 
 ingham, 16 Pa. Super. Ct. 374; Ram- 
 sey V. Arrott, 64 Tex. 320. 
 
638 
 
 ADVICE OP COUNSEL. 
 
 [§ 372 
 
 § 372. Bona Fides in Seeking and Acting upon Advice. — 
 
 It is well settled that the advice of counsel, in order to constitute 
 a defense to an action for malicious prosecution, must have been 
 sought and acted upon in good faith.''® If counsel is sought sim- 
 ply for protection against indulging the client's malice/' or to en- 
 able him to use the lav? for unjust and oppressive purposes •or 
 his private gain and advantage/' it will not only afford him no 
 defense/® but will be rather an element of increased damages.^* 
 Nor will the advice of counsel constitute a defense where the client 
 
 16 England. — Eavenga v. Mack- 
 intosh, 2 B. & C. 693, 9 E. C. L. 
 225. 
 
 Alahama,. — Sloss-Sheffield Steel, 
 etc., Co., V. O'Neal, 169 Ala. 8.3, 52 
 So. 953; Abingdon Mills v. Grogan, 
 57 So. 42. 
 
 California. — Potter v. Seale, 8 C&l. 
 217. 
 
 Illinois. — Roy v. Goings, 112 111. 
 656; Thomas v. Kerr, 137 111. App. 
 479. 
 
 Indiana. — Indianapolis Traction, 
 etc., Co. V. Henby, 97 ISf. E. 313. 
 
 loma. — Parkhurst v. Masteller, 57 
 la. 474, 10 N. W. 864; White v. In- 
 ternational Text-Book Co., 144 Iowa 
 92, 121 N. W. 1104. 
 
 Louisiana. — Block v. Meyers, 33 
 La. Ann. 776. 
 
 Maryland. — Moneyweight Scale Co. 
 V. McCormick, 109 Md. 170, 72 Atl. 
 537. 
 
 Massachusetts. — Wills v. Noyes, 12 
 Pick, 324; Connery v. Manning, 163 
 Mass. 44, 39 N. E. 558. 
 
 Michigan. — Josselyn v. McAllister, 
 22 Mich. 299; People v. Long, 50 
 Mich. 249, 15 N. W. 105; Davis v. 
 McMillan, 142 Mieh. 391, 7 Ann. Cas. 
 854, 105 N. W. 862, 113 Am. St. Rep. 
 585, 3 L.R.A.(N.S.) 928. 
 
 Minnesota. — Cole v. Curtis, 16 
 Minn. 182; Jeremy 17. St. Paul Boom 
 
 Co., 84 Minn. 516, 88 N. W. 13; Nel- 
 son V. International Harvester Co., 
 117 Minn. 298, 135 N. W. 808. 
 
 Mississippi. — Kehl v. Hope Oil- 
 Mill, etc., Co., 77 Miss. 762, 27 So. 
 641. 
 
 New York. — Kingsbury v. Garden, 
 45 Super. Ct. 224. 
 
 Pennsylvania. — Eadcliffe v. Holly- 
 field, 216 Pa. St. 367, 65 Atl. 789. 
 
 Vermont. — Powell v. Woodbury, 85 
 Vt. 504, 83 Atl. 541. 
 
 Wisconsin. — Billingsley v. Maas, 93 
 Wis. 176, 67 N. W. 49; Rogers v. 
 Van Eps, 143 Wis. 396, 127 N. W. 
 1006. 
 
 "Neufeld v. Rodeminski, 144 111. 
 83, 32 N. E. 913; Stevens v. Fassett, 
 27 Me. 266; Fugate v. Millar, 109 
 Mo. 281, 19 S. W. 71. 
 
 iSNeufeld v. Rodeminski, 144 111. 
 83, 32 N. E. 913; Freeman v. Wright, 
 113 111. App. 159 ; McCarthy v. Kitch- 
 en, 59 Ind. 500; Glascock v. Bridges, 
 15 La. Ann. 672; Grundy v. Crescent 
 News, etc., Co., 38 La. Ann. 974; 
 Jacobs 1'. Crum, 62 Tex. 401; Klein- 
 smith f. Hamlin, (Tex.) 60 S. W. 
 994. 
 
 19 Neufeld v. Rodeminski, 144 111. 
 83, 32 N. E. 913. 
 
 20 Ross i: Innis, 26 111. 259; Neu- 
 feld V. Rodeminski, 144 111. 83, 32 N. 
 E. 913. 
 
§ 373] 
 
 ADVICE OF COUNSEL. 
 
 639 
 
 did not rely thereon,* or where, irrespective of the advice received, 
 he believed the proceeding to be unfounded;^ and this is espe- 
 cially true if he received from another, learned in the law, whose 
 counsel he sought, advice of a contrary character upon the ques- 
 tion involved.* Whether a defendant, in an action for malicious 
 prosecution, acted in good faith on the advice of the attorney, is 
 generally for the jury.* 
 
 § 373. Requisite Statement of Facts. — It is well settled 
 that, to be effective as a defense, the advice of counsel must be 
 based on a knowledge of the facts; therefore, it is incumbent on 
 the party setting up this defense to show that, prior to receiving 
 the advice upon the strength of which he claims to have subse- 
 quently commenced the prosecution which is alleged to have been 
 malicious and without probable cause, he made a fair, full, and 
 accurate statement of all the material facts within his knowledge 
 to the counsel whose advice he sought and depends upon ; ° and the 
 force of testimony of this character is, in a large measure, to be 
 determined by the truthfulness and extent of the disclosure so 
 
 1 McCarthy v. Kitchen, 59 Ind. 500. 
 See also Allew v. Codman, 139 Mass. 
 136, 29 N. E. 537 ; Martin v. Corscad- 
 den, 34 Mont. 308, 86 Pac. 33. 
 
 2 Vann v. McCreary, 77 Cal. 434, 19 
 Pac. 826; McCarthy v. Kitchen, 59 
 md. 500; Center v. Springs, 2 Iowa 
 393; Acton v. Coflfman, 74 Iowa 17, 
 36 N. W. 774; Johnson v. Miller, 82 
 Iowa 693, 47 N. W. 903, 48 N. W. 
 1081, 31 Am. St. Rep. 514; Pipkin v. 
 Haucke, 15 Mo. App. 373. 
 
 3 Stevens v. Fassett, 27 Me. 266. 
 
 * Sloss.Sheffield Steel, etc., Co. v. 
 O'Neal, 169 Ala. 83, 52 So. 953; 
 Abingdon Mills v. Grogan, (Ala.) 57 
 So. 42; Nelson v. International Har- 
 vester Co., 117 Minn. 298, 135 N. W. 
 808; Powell v. Woodbury, 85 Vt. 504, 
 83 Atl. 541. 
 
 6 United States. — Blunt v. Little, 
 3 Mason 102, 3 Fed. Cas. No. 1,578. 
 
 Alabama. — Steed v. Knowles, 79 
 Ala. 446. 
 
 California. — Bliss v. Wyman, 7 Cal. 
 257; Wild v. Odell, 56 Cal. 136; Daw- 
 son V. Schloss, 93 Cal. 194, 29 Pac. 
 31; HoUiday v. Holliday, 123 Cal. 
 26, 55 Pac. 703. 
 
 Colorado. — Wyatt v. Burdette, 43 
 Colo. 208, 95 Pac. 336; Whitehead v. 
 Jessup, 2 Colo. App. 76, 29 Pac. 916. 
 
 Georgia. — Shores v. Brooks, 81 Ga. 
 468, 8 S. E. 429, 12 Am. St. Eep. 332; 
 Baker v. Langley, 3 Ga. App. 751, 60 
 S. E. 371. 
 
 Illinois. — Ames v. Snider, 69 111. 
 377 ; Davie v.. Wisher, 72 111. 262 ; 
 Beidler v. Beirnaert, 25 111. App. 422 ; 
 Daily v. Donath, 100 111. App. 52; 
 Thomas p. Kerr, 137 111. App. 479. 
 
 Indiana. — Paddock v. Watts, 116 
 Ind. 147, 18 N. E. 518, 9 Am. St. Eep. 
 832; Lawrence V. Leathers, 31 Ind. 
 
640 
 
 ADVICE OF COUNSEL. 
 
 [§ 
 
 made.' The term "full and fair statement of all the facts" does 
 not mean all the facts discoverable, but all the facts within the 
 knowledge of the person making the statement. If he knows 
 facts enough, either personally or by creditable information, 
 which, when fairly and fully stated to reputable counsel for the 
 purpose of obtaining legal guidance, result in advice which is hon- 
 estly followed in commencing criminal proceedings, that is sufS- 
 cient." It need not appear that the defendant, in making his dis- 
 closure to counsel, acted in a judicial or entirely impartial man- 
 it is enough if he acted as a reasonable and prudent person 
 
 ner 
 
 App. 414, 68 N. E. 179; Indianapolis 
 Traction & Terminal Co. v. Henby, 97 
 N. E. 313. 
 
 Iowa. — Logan v. Maytag, 57 Iowa 
 107, 10 N. W. 311 ; Johnson v. Miller, 
 69 Iowa 562, 29 N. W. 743, 58 Am. 
 Eep. 231. 
 
 Kansas. — Clark v. Baldwin, 25 Kan. 
 121. 
 
 Kentucky. — Gatz v. Harris, 134 
 Ky. 550, 121 S. W. 462; Weddington 
 V. White, 148 Ky. 671, 147 S. W. 17. 
 
 Louisiana. — Cointement v. Cropper, 
 41 La. Ann. 303, 6 So. 127; Weil v. 
 Israel, 42 La. Ann. 955, 8 So. 826; 
 King V. Erskins, 116 La. 480, 40 So. 
 844. 
 
 MassachMsetts. — ^Monaghan v. Cox, 
 155 Mass. 487, 30 N. E. 467, 31 Am. 
 St. Eep. 555; Black v. Buckingham, 
 174 Mass. 102, 54 N. E. 494. 
 
 Michigan. — Thurston v. Wright, 77 
 Mich. 96, 43 N. W. 860; Bennett v. 
 Eddy, 120 Mich. 300, 79 N. W. 481. 
 
 Minnesota. — Norrell v. Vogal, 39 
 Minn. 107, 38 N. W. 705. 
 
 Missouri. — Sappingtbn v. Watson, 
 50 Mo. 83. 
 
 Nebraska. — Jonasen v. Kennedy, 39 
 Neb. 313, 58 N. W. 122; Rosenblatt 
 V. Rosenberg, 1 Neb. (unofficial) Rep. 
 656, 95 N. W. 686. 
 
 New York. — Howe v. Oldham, 69 
 
 Hun 57, 23 N. Y. S. 703; Davidoff v. 
 Wheeler, etc., Mfg. Co., 14 Misc. 456, 
 35 N. Y. S. 1019, affirmed 16 Misc. 31, 
 37 N. Y. S. 661; Willard v. Holmes, 2 
 Misc. 303, 51 N. Y. St. Rep. 569; 
 Thompson v. Lumley, 50 How. Pr. 
 105. 
 
 Oklahoma. — El Reno Gas, etc., Co. 
 V. Spurgeon, 30 Okla. 88, 118 Pac. 
 397. 
 
 Pennsylvania. — Leahey v. March, 
 155 Pa. St. 458, 26 Atl. 701. 
 
 South Dakota. — Jackson v. Bell, 5 
 S. D. 257, 58 N. W. 671; Wuest v. 
 American Tobacco Co., 10 S. D. 394, 
 73 N. W. 903. 
 
 Virginia. — Forbes v. Hagman, 75 
 Va. 168 ; Evans v. Atlantic Coast Line 
 R. Co., 105 Va. 72, 53 S. E. 3. 
 
 Washington. — Baer v. Chambers, 67 
 Wash. 357, Ann. Cas. 1913D 559, 121 
 Pac. 843. 
 
 Wisconsin. — Haas v. Powers, 130 
 Wis. 406, 110 N. W. 205; Rogers v. 
 Van Eps, 143 Wis. 396, 127 N. W. 
 1006. 
 
 Wyoming. — Boyer v. Bugher, 19 
 Wyo. 463, 120 Pac. 171. 
 
 6 Whitfield V. Westbrook, 40 Miss. 
 311. And see the following section. 
 T Henderson v. McGruder, 49 Ind. 
 App. 682, 98 N. E. 137 ; King v. Ap- 
 ple River Power Co., 131 Wis. 575, 
 
373] 
 
 ADVICE OF COUNSEL, 
 
 641 
 
 would ordinarily act under like circumstances.' Any evasion or 
 concealment by the prosecutor in his statement of the case to his 
 counsel, or any failure on his part to make a full disclosure of all 
 the facts within his knowledge concerning it, will deprive him of 
 the protection which advice founded upon an honest, fair and full 
 presentation of the case affords.' The safer plan is to submit all 
 the facts to counsel and let him judge of their materiality for him- 
 self." It has been held that if, after the filing of an original com- 
 plaint for a criminal prosecution, those who instituted such pro- 
 ceeding learn facts showing the innocence of the accused, they are 
 not liable for merely withholding such information from the pros- 
 ecuting attorney, as the case is then in his hands; but they are 
 liable if they still insist upon, urge, and demand the prosecution 
 
 11 Ann. Cas. 951, 111 N. W. 668, 120 
 Am. St. Rep. 1063; Topolewski v. 
 Plankinton Packing Co., 143 Wis. 52, 
 126 N. W. 554, 35 L.E.A.(N.S.) 
 353. 
 
 ' Penney v. Johnston, 142 111. App. 
 634. 
 
 ^England. — Hewlett v. Cruchley, 5 
 Taunt. 277, 1 E. C. L. 107. 
 
 United States. — Cuthbert v. Gallo- 
 way, 35 Fed. 466. 
 
 Indiana. — Scotten v. Longfellow, 40 
 Ind. 24; Henderson v. McGruder, 49 
 Ind. App. 682, 98 N. E. 137; Indian- 
 apolis Traction, etc., Co. v. Henby, 97 
 N. E. 313. 
 
 Iowa. — Center v. Spring, 2 Iowa 
 393; White v. International Text- 
 Book Co., 144 Iowa 92, 121 N. W. 
 1104; Dorr Cattle Co. v. Des Moines 
 Nat. Banlc, 127 Iowa 153, 4 Ann. Cas. 
 519, 98 N. W. 918. 
 
 Kentucky. — Gatz v. Harris, 134 
 Ky. 550, 121 S. W. 462. 
 
 Maine. — Stevens v. Fassett, 27 Me. 
 266. 
 
 Michigan. — Josselyn v. McAllister, 
 22 Mich. 299; Peterson v. Toner, 80 
 Attys. at L. Vol. II.— 41. 
 
 Mich. 350, 45 N. W. 346; Davis v. 
 McMillan, 142 Mich. 391, 7 Ann. Cas. 
 854, 105 N. W. 862, 113 Am. St. Rep. 
 585, 3 L.R.A.(N.S.) 928. 
 
 Neiraska. — Peterson v. Eeisdorph, 
 49 Neb. 529, 68 N. W. 943 ; Jensen v. 
 Halstead, 61 Neb. 249, 85 N. W. 78; 
 Miles V. Walker, 66 Neb. 728, 92 N. 
 W. 1014. 
 
 New York. — Lathrop v. Mathers, 
 143 App. Div. 376, 128 N. Y. S. 492 ; 
 Willard v. Holmes, 2 Misc. 303, 21 N. 
 Y. S. 998. 
 
 Ohio. — Broerman v. Ryan, 6 Ohio 
 Cir. Dee. 15. 
 
 Pennsylvania. — Barhight v. Tam-" 
 many, 158 Pa. St. 545, 28 Atl. 135, 
 38 Am. St. Rep. 853 ; Radcliffe v. Hol- 
 lyfield, 216 Pa. St. 367-, 65 Atl. 789; 
 Replogle V. Frothingham, 16 Pa. 
 Super. Ct. 374. 
 
 Texas. — Missouri, etc., R. Co. v. 
 Groseclose, 134 S. W. 736. 
 
 Wisconsin. — ^Palmer v. Broder, 78 
 Wis. 483, 47 N. W. 744. 
 
 Wyoming. — Boyer v. Bugher, 19 
 Wyo. 463, 120 Pac. 171. 
 
 10 HiU V. Palm, 38 Mo. 13. 
 
642 
 
 ADVICE OF CODKSEL. 
 
 [§ 374 
 
 of the accused." The defendant has the burden of establishing 
 the fact that he made the requisite statement of fact to the attor- 
 ney whose advice he acted upon," and, to sustain this burden, he 
 should show precisely what facts, information, and circumstances 
 were communicated by him to his counsel. ^^ The witness cannot 
 testify that he related all the facts and circumstances without stat- 
 ing what they were, as that would be the statement of a conclu- 
 sion by him.'* The inferences to be drawn from the facts are for 
 the jury,'* unless, of course, the facts are uncontroverted ; in that 
 case the legal result follows as a matter of course.'* 
 
 § 374. Necessity of Exercising Diligence to Discover 
 Facts. — The rule stated in the foregoing section is considerably 
 
 11 Blunk V. Atchison, etc., E. Co., 
 38 Fed. 311. 
 
 liWyatt V. Burdette, 43 Colo. 208, 
 95 Pac. 336; Struby-Estabrook Mer- 
 cantile Co. V. Kyes, 9 Colo. App. 190, 
 48 Pac. 663; Wuest v. American To- 
 bacco Co., 10 S. D. 394, 73 N. W. 903. 
 
 13 Watt V. Corey, 76 Me. 87; Coop- 
 er V. Utterbach, 37 Md. 282 ; Jonasen 
 V. Kennedy, 39 Neb. 313, 58 N. W. 
 122. 
 
 1* Jonasen v. Kennedy, 39 Neb. 313, 
 58 N. W. 122 ; Jensen v. Halstead, 61 
 Neb. 249, 85 N. W. 78. 
 
 15 Alabama. — Goldstein v. Drysdale, 
 148 Ala. 486, 42 So. 744; Abingdon 
 Mills V. Grogan, 167 Ala. 146, 52 So. 
 596, 57 So. 42; Sloas-Sheffield Steel, 
 etc., Co. V. O'Neal, 169 Ala. 83, 52 So. 
 955; Stewart's;. Blair, 171 Ala. 147, 
 Ann. Cas. 1913A 925, 54 So. 506. 
 
 Arlcansas. — Harr v. Ward, 73 Ark. 
 437, 84 S. W. 496; Wells v. Parker, 76 
 Ark. 41, 6 Ann. Cas. 259, 88 S. W. 
 602. 
 
 District of Columbia. — Staples v. 
 Johnson, 25 App. Cas. 155. 
 
 Illinois.— Grviel v. Mengler, 74 111. 
 App. 36; Thomas v. Kerr, 137 111. 
 App. 479. 
 
 Kansas. — Drake v. Vickery, 81 
 Kan. 519, 106 Pac. 290. 
 
 Kentuchy. — Gatz v. Harris, 134 
 Ky. 550, 121 S. W. 463; Weddington 
 V. White, 148 Ky. 671, 147 S. W. 17. 
 
 Massachusetts. — Connery v. Mann- 
 ing, 163 Mass. 44, 39 N. E. 558. 
 
 Michigan. — Webster v. Fowler, 89 
 Mich. 303, 50 N. W. 1074; Thompson 
 V. Price, 100 Mich. 558, 59 N. W. 253 ; 
 Burbanks v. Lepovsky, 134 Mich. 384, 
 96 N. W. 456; Phiscator v. Rice, 147 
 Mich. 411, 110 N. W. 1095. 
 
 Minnesota. — Nelson v. Internation- 
 al Harvester Co., 117 Minn. 298, 135 
 N. W. 808. 
 
 Missouri. — Carp v. Queen Ins. Co., 
 203 Mo. 295, 101 S. W. 78. 
 
 Nebraska. — Jonasen v. Kennedy, 39 
 Neb. 313, 58 N. W. 122. 
 
 New York.— Ames v. Eathbun, 55 
 Barb. 194. 
 
 Pennsylvania. — Eadcliffe v. Holly- 
 field, 216 Pa. St. 367, 65 Atl. 789. 
 
 Wisconsin. — ^Haas v. Powers, 130 
 Wis. 406, 110 N. W. 205. 
 
 16 King V. Apple Eiver Power Co., 
 131 Wis. 575, 11 Ann. Cas. 951, 111 
 N. W. 668, 120 Am. St. Eep. 1063. 
 
§■ 374] 
 
 ADVICE OF COUJ!«^SEL. 
 
 G43 
 
 broadened by some of the adjudicated cases ; thus it is held to be 
 necessary not only to make a full, fair, and accurate statement of 
 the facts known to the client, but also to show that such statement 
 included a recitation of any facts which might have been learned 
 by the exercise of ordinary diligence.''' It is evident, however, 
 that what will amount to this degree of diligence must in all in- 
 stances depend on the facts in each case, and is at best problem- 
 atical. A better statement of the rule would seem to be that if the 
 
 "^T Alabama. — Steed v. Knowles, 79 
 Ala. 446; Motes v. Bates, 80 Ala. 
 382; Abingdon Mills v. Grogan, 167 
 Ala. 146, 52 So. 596; Stewart v. Blair, 
 171 Ala. 147, Ann. Cas. 1913A 925, 54 
 So. 506. 
 
 California. — Scrivani v. Dondero, 
 
 128 Cal. 31, 60 Pac. 463. 
 Colorado. — Wyatt v. Burdette, 43 
 
 Colo. 208, 95 Pac. 336. 
 
 Indiana. — Galloway v. Stewart, 49 
 Ind. 156, 19 Am. Rep. 677. 
 
 Iowa. — Dorr Cattle Co. v. Des 
 Moines Nat. Bank, 127 Iowa 153, 4 
 Ann. Cas. 519, 98 N. W. 918; White 
 V. International Text-Book Co., 144 
 Iowa 92, 121 N. W. 1104. 
 
 Kansas. — Clark v. Baldwin, 25 
 Kan. 120; Atchison, etc., R. Co. v. 
 Brown, 57 Kan. 785, 48 Pac. 31; 
 Drake v. Vickery, 81 Kan. 519, 106 
 Pac. 290. 
 
 Kentucky. — Ahrens, etc., Mfg. Co. 
 V. Hoeher, 106 Ky. 692, 51 S. W. 194; 
 Gatz V. Harris, 134 Ky. 550, 121 S. 
 W. 462; Smith v. Fields, 139 Ky. 60, 
 
 129 S. W. 325, 30 L.R.A.(N.S.) 870; 
 Weddington v. White, 148 Ky. 671, 
 147 S. W. 17 ; Nance v. Cash, 143 Ky. 
 358, Ann. Cas. 1912D 422, 136 S. W. 
 619. 
 
 Louisiana. — Kirk v. Wiener-Loeb 
 Laundry Co., 120 La. 820, 45 So. 738. 
 
 Maine. — White v. Carr, 71 Me. 555, 
 36 Am. Rep. 533. 
 
 Maryland. — Moneyweight Scale Co. 
 V. McCormick, 109 Md. 170, 72 Atl. 
 537. 
 
 Missouri. — Hill v. Palm, 38 Mo. 
 13; Fugate v. Millar, 109 Mo. 281, 19 
 S. W. 71 ; Carp v. Queen Ins. Co., 203 
 Mo. 295, 101 S. W. 78; Pipkin v. 
 Haucke, 15 Mo. App. 373; Butcher, v. 
 Hoffman, 99 Mo. App. 239, 73 S. W. 
 266. 
 
 Nebraska. — Jensen v. Halstead, 61 
 Neb. 249, 85 N. W. 78; Duffy v. 
 Scheerger, 91 Neb. 511, 136 N. W. 
 724. 
 
 North Dakota. — Merchant v. Pielke, 
 10 N. D. 48, 84 N. W. 574. 
 
 Oklahoma. — El Reno Gas, etc., Co. 
 V. Spurgeon, 30 Okla. 88, 118 Pac. 
 397. 
 
 Oregon. — Hess v. Oregon German 
 Baking Co., 31 Ore. 503, 49 Pac. 
 803. 
 
 Pennsylvania.- — Barhight v. Tam- 
 many, 158 Pa. St. 545, 28 Atl. 135, 
 38 Am. St. Rep. 853; Beihofer r.. 
 Loeffert, 159 Pa. St. 374, 28 Atl. 2] 6;-. 
 Replogle V. Frothingham, 16 Pa. Su- 
 per. Ct. 374. 
 
 Teico*.— Missouri, K. & T. R. Co. i\ 
 Groseclose, 50 Tex. Civ. App. 525, 110 
 S. W. 477. 
 
 Virginia. — Evans v. Atlantic Coast 
 Line R. Co., 105 Va. 72, 53 S. E. 3. 
 
 Wyoming. — Boyer v. Bugher, 19 
 Wyo. 463, 120 Pac. 171. 
 
644 ADVICE OF COUNSEL, [§ 374 
 
 client has reasonable ground for believing that facts exist which 
 would tend to exculpate the accused from the charge, good faith 
 requires that he shall either make further inquiry with reference 
 to those facts and communicate the information obtained to coun- 
 sel, or that he shall inform him of his belief in their existence, in 
 order that counsel may investigate or direct investigation with re- 
 spect to them, and take into account, in forming his opinion, any 
 information so discovered ; ^' but he is not required to institute a 
 blind inquiry to ascertain whether facts exist which would have a 
 tendency to exculpate the party accused.^* It is urged against 
 this rule that by its enforcement one commencing a criminal pros- 
 ecution with the most malicious motives and entire want of prob- 
 able cause might shield himself behind the advice of an unscrupu- 
 lous or incompetent attorney. In reply to this it may be said that 
 dishonest parties often take advantage of the most beneficent legal 
 rules in an attempt to escape punishment or liability on account 
 of their wrongdoing; and the fact that injustice may occasionally 
 arise because of a rule of law founded on reason and public pol- 
 icy ought not to operate in its disfavor. Public policy and the en- 
 forcement of criminal laws require that, where probable cause ex- 
 ists to believe one guilty of a criminal offense, a prosecution there- 
 for should be instituted ; and no citizen commencing such a prose- 
 cution with honest motives, and from a desire to enforce the laws 
 of the land, should be made liable in damages because of an hon- 
 est mistake, or the development of facts in the case of which he 
 was not aware at the time of instituting the action. And the at- 
 torney who may be consulted in such a case should go further in 
 his opinion than merely to give his judgment upon the facts dis- 
 closed to him ; his advice should also cover his belief as to whether 
 sufficient inquiry has been made by the defendant to ascertain any 
 other essential facts which further investigation might disclose.^" 
 In criminal cases, the public prosecutor is the representative of the 
 
 18 Johnson v. Miller, 69 Iowa 562, Packing Co., 143 Wis. 52, 126 N. W. 
 
 29 N. W. 743, 58 Am. Rep. 231 ; Hesa 554. 
 
 V. Oregon German Baking Co., 31 19 Johnson v. Miller, 69 Iowa 562, 
 
 Ore. 503, 49 Pac. 803 ; Putnam v. 29 N. W. 743, 58 Am. Eep. 231. 
 
 Stalker, 50 Ore. 210, 91 Pac. 363. 20 Gillispie tj. Stafford, 4 Neb. (un- 
 
 See also Holliday v. Holliday, (Gal.) official) Rep. 873, 96 N. W. 1039. 
 53 Pac. 42; Topolewski v. Plankinton 
 
§ 375] ADVICE OF COUNSEL. 645 
 
 state. He is required, not only to prosecute indictments -which 
 are found, but it is his duty to assist in the investigation of charges 
 against individuals which are brought to the attention of the grand 
 jury. He is by law made the legal adviser of the grand jury. 
 When complaint is made to him that a public offense has been 
 committed, it is his duty to investigate the charge, and, if he deems 
 it a matter of sufficient importance to demand the attention of the 
 grand jury, it is also his duty to have the witnesses subpoenaed 
 and brought before that body ; and he has the right to appear, also, 
 and assist in their examination. JSTeither he nor the grand jury 
 are confined in their investigations to the witnesses named by the 
 complainant, but they have the power to send for and examine any 
 witnesses who, they have reason to believe, can give any material 
 evidence bearing on the question of the guilt of the accused. It 
 would, however, be a very harsh rule, and one calculated to dis- 
 courage entirely the making of complaints by private individuals, 
 to hold that one who has acted on the advice of the district attor- 
 ney, given upon a full and fair statement of all the material 
 facts which he knew, or which he had reasonable ground to be- 
 lieve, was not protected by the advice of the attorney, simply be- 
 cause he did not, before making the complaint, learn of other ma- 
 terial facts, of the existence of which he might have learned by 
 reasonable inquiry.^ Whether the requisite degree of reasonable 
 diligence has been exercised is a question for the jury to deter- 
 mine.* 
 
 § 375. Requisites as to Advice Received. — The advice of 
 counsel having been sought in good faith, and the requisite state- 
 ment of facts having been made, a client who acts honestly on the 
 advice received is not affected by the lack of good faith on the part 
 
 1 Johnson v. Miller, 69 Iowa 562, 550, 121 S. W. 463; Weddington v. 
 
 29 N. W. 743, 58 Am. Rep. 23]. White, 148 Ky. 671, 147 S. W. 17. 
 
 ^Alabama. — Abingdon Mills K. Gro- Minnesota. — ^Nelson v. Internation- 
 
 gan, 167 Ala. 146, 52 So. 596, 57 So. al Harvester Co., 117 Minn. 298, 135 
 
 42. N. W. 808. 
 
 Illinois. — Anderson V. Friend, 71 Nebraska. — Gillispie v. Stafford, 4 
 
 111. 475. Neb. (unofficial) Kep. 873, 96 N. W. 
 
 Kentucky.— Ga,tz v. Harris, 134 Ky. 1039. 
 
646 
 
 ADVICE OF COUNSEL. 
 
 [§ 375 
 
 of the attorney in giving his opinion,' or by the fact that the ad- 
 vice was erroneous in point of law,* unless, of course, the client 
 knew or had reason to believe that the advice was not honestly 
 given.^ If on a full, fair, and accurate statement of the facts, the 
 attorney advises that they are sufEcient to warrant the institution 
 of a criminal prosecution, the client is justified in undertaking 
 such a proceeding, providing, of course, that he acts in good faith ; 
 and this is particularly true where the facts are laid before the 
 official prosecutor, and the prosecution is begun on his advice.* If 
 the prosecuting attorney considers that a given state of facts is 
 sufficient evidence of probable cause, the private citizen cannot 
 be said to be in fault in acting thereon. To hold otherwise would 
 
 8 Seabrldge v. MoAdam, 119 Cal. 
 460, 51 Pac. 691; Collins v. Hayte, 50 
 lU. 338, 99 Am. Dec. 521; Penney v. 
 Johnston, 142 111. App. 634; Shea v. 
 Cloquet Lumber Co., 92 Minn. 348, 1 
 Ann. Cas. 930, 100 N. W. 111. 
 
 * Abingdon Mills v. Grogan, 167 
 Ala. 146, 52 So. 596; Indianapolis 
 Traction, etc., Co. l. Henby, (Ind.) 97 
 N. E. 313; Gatz v. Harris, 134 Ky. 
 550, 121 S. W. 463; Nelson v. Inter- 
 national Harvester Co., 117 Minn. 
 298, 135 N. W. 80S. 
 
 B Shea V. Cloquet Lumber Co., 92 
 Minn. 348, 1 Ann. Cas. 930, 100 N. W. 
 111. 
 
 6 Illinois. — Ross v. Innis, 26 111. 
 260; Ames v. Snider, 69 111. 377; 
 Anderson i;. Friend, 85 111. 135; Chi- 
 cago, R. I., etc., R. Co. V. Pierce, 98 
 111. App. 368; Abel V. Douney, 110 
 111. App. 343; Young V. Lindstrom, 
 115 111. App. 239; Fitzsimmons v. 
 Mason, 135 111. App. 565. 
 
 Indiana. — Burgett v. Burgett, 43 
 Ind. 78. 
 
 Kentucky. — Tandy v. Riley, 80 S. 
 W. 776. 
 
 Michigan. — Smith v. Austin, 49 
 Mich. 286, 13 N. W. 593; Huntington 
 
 f. Gault, 81 Mich. 144, 45 N. W. 970; 
 Fletcher v. Chicago, etc., R. Co., 109 
 Mich. 363, 67 N. W. 330; Christy v. 
 Rice, 152 Mich. 563, 116 N. W. 200. 
 
 Minnesota. — Baldwin v. Capitol 
 Steam Laundry Co., 109 Minn. 38, 
 122 N. W. 460. 
 
 Missouri. — Warren v. Flood, 72 
 Mo. App. 199; Pinson v. Campbell, 
 124 Mo. App. 260, 101 S. W. 621. 
 
 Nebraska. — Maynard v. Sigman, 65 
 Neb. 590, 91 N. W. 576. 
 
 Neio Jersey. — Magowan v. Rickey, 
 64 N. J. L. 402, 45 Atl. 804. 
 
 Oregon. — Hess v. Oregon German 
 Baking Co., 31 Ore. 503, 49 Pac. 803. 
 
 Rhode Island. — Goldstein v. Foul- 
 kes, 19 R. I. 291, 36 Atl. 9. 
 
 South Dakota. — Krause v. Bishop, 
 18 S. D. 298, 100 N. W. 434. 
 
 Texas. — Lenoir v. Marlin, 10 Tex. 
 Civ. App. 376, 30 S. W. 566. 
 
 Washington. — Simmons v. Gardner, 
 46 Wash. 282, 89 Pac. 887. 
 
 Wisconsin. — Plath v. Braunsdorff, 
 40 Wis. 107; Brinsley v. Schulz, 124 
 Wis. 426, 102 N. W. 918; Topolewski 
 V. Plankinton Packing Co. 143 Wis. 
 52, 126 N. W. 554; Hippler v. Quandt, 
 145 Wis. 221, 129 N. W. 1099. 
 
§ 376] ADVICE OF COUNSEL. 647 
 
 be to use the machinery of government as a trap to ensnare those 
 who trust in government for such matters, and who ought to trust 
 in it. If such officers make a mistake, it is an error of the gov- 
 ernment itself, and a citizen should not be permitted to suffer for 
 his trust in its proper functionaries.'' If the counsel consulted ad- 
 vises that it is doubtful whether, upon the facts stated, a party is 
 guilty of any crime, the one advised, in thereafter instituting a 
 criminal prosecution, proceeds at his own risk.^ Where, in an ac- 
 tion for malicious prosecution, it appeared that the defendant was 
 present at, but took no part in, an examination of witnesses con- 
 ducted by the district attorney to ascertain who was probably gTiilty 
 of a certain crime, and, at the close of the examination, the district 
 attorney, on the information so obtained, advised the defendant 
 that there was sufficient evidence to justify the making of a com- 
 plaint against the plaintiff, and that the justice, before whom 
 such examination was had, considered the evidence sufficient and 
 issued the warrant ; it was held that it was not error to refuse to 
 give instructions applicable to the ordinary defense of advice of 
 counsel, because the advice of counsel was not a defense in such 
 case, but was only one circumstance, among others, by which the 
 defendant sought to establish probable cause.' Whether the ad- 
 vice asserted in defense is that of the prosecuting attorney or of 
 private counsel, it must be sought and received prior to the com- 
 mencement of the alleged malicious prosecution; advice received 
 subsequently thereto is immaterial.*" 
 
 § 376. Qualification of Attorney Consulted. — To render 
 the advice of a counsel available as a defense in actions for ma- 
 licious prosecution, it must appear that the attorney consulted was 
 one learned in the law." It will be presumed, however, that one 
 duly admitted to practice is learned in the law, as otherwise the 
 
 'Laughlin v. Clawson, 27 Pa. St. 9 Messman v. Ihlenfeldt, 89 Wis. 
 
 328; Missouri, K. & T. R. Co. v. 585, 62 N. W. 522. 
 
 Groseclose, 50 Tex. Civ. App. 525, 110 m Blunt v. Little, 3 Mason 102, 3 
 
 S. W. 477; Topolewski v. Plankinton Fed. Cas. No. 1,578; Pandjiris v. 
 
 Packing Co., 143 Wis. 52, 126 N. W. Hartman, 196 Mo. 539, 94 S. W. 270; 
 
 554. Murphy v. Eidlitz, 121 App. Div. 224, 
 
 8 Casearella f. National Grocer Co., 105 N. Y. S. 674. 
 
 151 Mich. 15, 114 N. W. 857. " McCuUough v. Rice, 59 Ind. 580; 
 
648 ADVICE OF COUNSEL. [§ 376 
 
 rule under consideration would lead to no end of confusion.^* 
 But as there is an element of good faith in the selection of coun- 
 sel, it should at least appear in all cases wherein this defense is 
 set up that the counsel selected is a regularly licensed attorney " 
 of good repute." It should also appear that he is not interested 
 in the subject-matter of the consultation ; ** for when he is directly 
 interested therein the client has no right to presume that he will 
 give him an unbiased opinion; and if the client takes and acts 
 upon an opinion received from such a source, and it turns out to 
 be erroneous, it will afford him no justification.^* Thus where an 
 attorney and his client conspire to institute a prosecution, the lat- 
 ter cannot justify himself by the other's advice." It would be 
 unfair to the other party in interest that the defendant, or any 
 one similarly situated, should be permitted to shield himself by 
 advice from an associate in the very enterprise in which it is 
 claimed that the plaintiff has been injured ; and it is no hardship 
 to require the complainant in a criminal case to be advised respect- 
 ing such matters by one who is not biased by his own personal or 
 pecuniary interests.^* But the mere fact that the attorney who 
 advised an association not organized for profit and paying no divi- 
 dends was himself a member of the association does not deprive it 
 
 Monaghan v. Cox, 155 Mass. 487, 30 422; Hiersche v. Scott, 1 Neb. (un- 
 
 N. E. 467, 31 Am. St. Rep. 555. official) Rep. 48, 95 N. W. 494; Seal 
 
 In Mortimer v. Thomas, 23 La. v. Robeson, 30 N. C. 276; El Reno 
 
 Ann. 165, it was said: "He acted Oas, etc., Co. v. Spurgeon, 30 Okla. 
 
 under the advice, however, of a young 88, 118 Pac. 397. 
 
 lawyer, who instituted the proceed- 1* Murphy v. Larson, 77 111. 172; 
 
 ings, whose ignorance of the law, Livingston v. Burroughs, 33 Mich, 
 
 although not justifying the arrest, 511. 
 
 might to some extent mitigate the 15 Smith v. Fields, 139 Ky. 60, 129 
 
 damages to which his client should S. W. 325, 30 L.R.A.(N.S.) 870; 
 
 be subjected." Hewlett v. Cruchley, Watt v. Corey, 76 Me. 87; Gurden v. 
 
 5 Taunt. 277, 1 E. C. L. 107 ; Murphy Stevens, 146 Mich. 489, 109 N. W. 
 
 V. Larson, 77 111. 172; Stevens v. Fas- 856. 
 
 sett, 27 Me. 266; White v. Carr, 71 "White v. Carr, 71 Me. 555, 36 
 
 Me. 555, 36 Am. Rep. 353; Watt v. Am. Rep. 353; Adkin v. Pillen, 136 
 
 Corey, 76 Me. 87. Mich. 682, 100 N. W. 176; Sherburne 
 
 12 O'Neal V. McKinna, 116 Ala. 606, v. Rodman, 51 Wis. 474, 8 N. W. 414. 
 
 22 So. 905. 17 Hamilton v. Smith, 39 Mich. 222. 
 
 IS Murphy v. Larson, 77 111. 172; 18 Adkin i;. Pillen, 136 Mich. 682, 
 
 Beidler v. Beirnaert, 25 111. App. 100 N. W. 176. 
 
§§ 377, 378] ADVICE of couksel. 649 
 
 of the protection afforded by the advice of counsel.^' It is for the 
 jury to say whether or not the attorney consulted was a disinter- 
 ested person, where there is a conflict of evidence with respect to 
 this question.*" 
 
 § 377. Advice of Prosecuting Attorney. — The advice of 
 counsel as a defense in malicious prosecution cases is especially 
 pertinent where the attorney consulted, and whose advice has been 
 acted upon, is the public prosecutor.*^ It is generally conceded 
 that advice so received constitutes a complete defense,* even though 
 erroneous,* providing, of course, that it was predicated upon a 
 full, fair, and accurate statement of the facts, and was sought and 
 acted upon in good faith.* 
 
 § 378. Advice of Persons Other than Attorneys. — It is 
 
 well settled that the advice of persons other than duly licensed at- 
 torneys at law does not constitute a defense to an action for ma- 
 licious prosecution.* It is immaterial that the person consulted, 
 and whose advice is relied upon, held himself out as an attorney, 
 and was believed to be such by the party consulting him.' So, it 
 will be no defense to show that a prosecution was advised by a 
 
 isAlbevs V. Merchants' Exchange, & Electric Co. v. Spurgeon, 30 Okla. 
 
 138 Mo. 140, 39 S. W. 473. 88, 118 Pae. 397. And see the cross- 
 
 20 Watt V. Corey, 76 Me. 87. references given in the note iramedi- 
 
 21 Steed V. Knowles, 79 Ala. 446; ately preceding. 
 
 L. B. Price Mercantile Co. v. Cuilla, s Hicks v. Brantley, 102 Ga. 264, 
 
 100 Ark. 316, 141 S. W. 194; Gilbert- 29 S. E. 459. 
 
 son V. Fuller, 40 Minn. 413, 42 N. W. But see Eoy v. Goings, 112 111. 656, 
 
 203 ; Putnam v. Stalker, 50 Ore. 210, wherein the court said that it was not 
 
 91 Pac. 363. And see supra, § 369, prepared to hold that an attorney, by 
 
 note 6; § 373, note 11; § 374, note 1; the mere fact of holding a commis- 
 
 and § 375, notes 6, 10. sion as state's attorney, must be held 
 
 1 Widmeyer v. Felton, 95 Fed. 926 ; to be an attorney in good standing 
 
 Arabs V. Atchison, etc., K. Co., 114 for skill, prudence and fairness. 
 
 Fed. 317; L. B. Price Mercantile Co. 3 See supra, §§ 372, 373. 
 
 (. Cuilla, 100 Ark. 316, 141 S. W. * Stanton v. Hart, 27 Mich. 539; 
 
 194; Van Meter v. Bass, 40 Colo. 78, Livingston v. Burroughs, 33 Mich. 
 
 90 Pac. 637, 18 L.E.A.(2S\S.) 49; 511. 
 
 Florida East Coast R. Co. v. Groves, 5 Murphy «. Larson, 77 111. 172. 
 55 Fla. 436, 46 So. 294; El Reno Gas 
 
650 
 
 ADVICE OB" COUNSEL. 
 
 [§ 378 
 
 justice of the peace, or other magistrate or ministerial officer,* 
 even though such magistrate or officer may also be an attorney,' 
 unless, of course, he has been consulted as an attorney, and, if so, 
 that fact should be shown by the defendant.' ISTor is it any de- 
 fense that the prosecution was commenced on the advice of a po- 
 lice officer,^ or a detective.*" The law allows honest action upon 
 the advice of counsel, who have been fully informed on the facts, 
 to be considered as a defense in actions for malicious prosecution 
 upon the sole ground that a person has done all he could be ex- 
 pected to do to enable him to act safely. But it is not the policy 
 of the law to permit innocent men to be subjected to false charges 
 and unfounded arrests ; and a person who assumes to prosecute is 
 bound to use all reasonable means to avoid committing such a griev- 
 ance. Every man of common information is presumed to know 
 that it is not safe, in matters of importance, to trust to the legal 
 opinions of any but recognized lawyers ; and no matter is of more 
 
 6 United States. — Cook v. Proskey, 
 138 Fed. 273, 70 C. C. A. 563. 
 
 Alabama. — Marks v. Hastings, 101 
 Ala. 165, 13 So. 297. 
 
 California. — Cochran v. Bones, 1 
 Cal. App. 729, 82 Pac. 970. 
 
 District of Columbia. — Coleman v. 
 Heurich, 2 Mackey 189. 
 
 Georgia. — ^Rigden v. Jordan, 81 Ga. 
 668, 7 S. E. 857. 
 
 Iowa. — Neeker v. Bates, 118 Iowa 
 545, 92 N. W. 667. 
 
 Maine. — Finn v. Frink, 84 Me. 261, 
 24 Atl. 851, 30 Am. St. Rep. 348. 
 
 Maryland. — Straus v. Young, 36 
 Md. 246. 
 
 Massaohusetts. — Olmstead v. Part- 
 ridge, 16 Gray 381. 
 
 Michigan. — Stanton v. Hart, 27 
 Mich. 539. 
 
 Missouri. — Williams v. Vanmeter, 
 8 Mo. 339, 41 Am. Dec. 644. 
 
 Oregon. — Gee v. Culver, 12 Ore. 
 228, 6 Pac. 775. 
 
 Pennsylvania. — Brobst r. Ruff, 100 
 Pa. St. 91, 45 Am. Rep. 358. 
 
 West Virginia. — Catzen v. Belcher, 
 64 W. Va. 314, 16 Ann. Cas. 715, 61 
 S. E. 930, 131 Am. St. Rep. 903, over- 
 ruling Slsk V. Hurst, 1 W. Va. 53. 
 
 Wisconsin. — Sutton v. McConnell, 
 46 Wis. 269, 50 N. W. 414. 
 
 Comoro.— Ball v. Rawles, 93 Cal. 
 222, 28 Pac. 937, 27 Am. St. Rep. 
 174; Thomas r. Paynter, 1 W. N^. c. 
 (Pa.) 300, folloicing and criticising 
 Rosenstein v. Feigel, 6 Phila. (Pa.) 
 532, 25 Leg. Int. 37. 
 
 T Marks v. Hastings, 101 Ala. 165, 
 13 So. 297; Monaghan r. Cox, 155 
 Mass. 487, 30 N. E. 467, 31 Am. St. 
 Rep. 555 ; Turner v. Dinnegar, 20 Hun 
 (N. Y.) 465. 
 
 8 Cooney v. Chase, 81 Mich. 203, 45 
 N. W. 833. 
 
 9 Bright V. Patton, 5 Mackey (D. 
 C.) 534, 60 Am. Rep. 396; Hirsch v. 
 Feeney, 83 111. 548; Schroeder v. 
 Blum, 74 Neb. 60, 103 N. W. 1073. 
 
 10 Breitmesser v. Stier, 13 Phila. 
 (Pa.) 80, 36 Leg. Int. 486. 
 
§ 378] ADVICE OF COUJfSEL. 651 
 
 legal importance than private reputation and liberty. It v?oulcl 
 be very dangerous to relax the rules on this subject. There can 
 never be any difficulty in finding professional advisers under or- 
 dinary circumstances. And where the prosecution complained of 
 is a criminal one, there is still less cause for removing any safe- 
 guard against oppression and vexatious proceedings. The rule 
 originated in England, where there is no public prosecutor, and 
 where all complaints must usually be made by private parties. 
 They were compelled to employ counsel to prosecute, and it would 
 have been unjust to compel them to do more than use proper dili- 
 gence and fairness in choosing and instructing them. Under our 
 system all prosecutions are put under official control, and a prin- 
 cipal reason for this was the abuses of private prosecutions, which 
 are very apt to be set on foot for private purposes rather than for 
 the public good. The very fact that a person is in doubt should 
 teach him the necessity of caution and lead him to communicate 
 with the proper authorities, and to place the care of the prosecu- 
 tion with them. There is no need in such cases to rely on irregu- 
 lar advisers, and it is a practice not to be favored.'* But on the 
 theory that when a person resorts to the best means in his power 
 for information, it will be such proof of honesty as will disprove 
 malice and operate as a defense proportionate to his diligence, evi- 
 dence of the fact that a prosecution was advised by persons other 
 than attorneys, who were consulted in good faith, and to whom 
 the facts wei;e fully stated, has been received in mitigation of puni- 
 tive, but not of actual, damages.' 
 
 12 
 
 11 Stanton r. Hart, 27 ilich. 539. Gray (Mass.) 381; Stanton c. Hart, 
 
 l^Murphy t. Larson, 77 111. ]72; 27 Mich. 539; Livingston v. Bur- 
 
 Monaghan c. Cox, 155 Mass. 487, 30 roughs, 33 Mich. 511; Parr r. Loder, 
 
 >f. E. 467, 31 Am. St. Rep. 555, esc- 97 App. Div. 218, 89 N. Y. S. 823. 
 plaining Olmstead v. Partridge, 16 
 
CHAPTER XVIII. 
 
 CHAMPERTY, BARRATRY, AND MAINTENANCE. 
 
 Definitions and Distinctions. 
 
 379. Champerty Defined. 
 
 380. Barratry Defined. 
 
 381. Maintenance Defined. 
 
 382. Terms Distinguished. 
 
 Origin, Purpose, and Adoption of English Laws. 
 
 383. Origin. 
 
 384. Purpose. 
 
 385. Adoption of English Laws in United States. 
 
 As Affecting Contracts for Compensation. 
 
 386. Contingent Fees. 
 
 387. In Suits to Recover Land. 
 
 388. Contracting for Part of Recovery Distinguished from Creating In- 
 
 debtedness for Fees. 
 
 389. Agreement to Pay Costs or Expenses. 
 
 390. Contracts Forbidding Settlement by Client. 
 
 391. Contracts Entered into after Final Judgment. 
 
 392. Presentation of Claims against Government. 
 
 393. Aiding Poor Persons. 
 
 394. Recovery on Quantum Meruit for Services Rendered under Champer- 
 
 tous Contract. 
 
 Purchase of Litigious Rights. 
 
 395. Generally. 
 
 396. Under Statutes. 
 
 397. In New York. 
 
 Ghampertous Agreement as Defense to Action. 
 
 398. General Rule. 
 
 399. Rule in Wisconsin. 
 
 652 
 
§ 379] CHAMPEETT, BAKEATET, AND MAINTENANCE. 
 
 653 
 
 Definitions and Distinctions. 
 
 § 379. Champerty Defined. — Champerty consists of an un- 
 lawful agreement to prosecute litigation for another in consider- 
 ation of receiving the whole, or a part of, or an interest in, the 
 subject-matter of the litigation.* To be champertous, the agree- 
 ment must stipulate for the prosecution or defense of a suit. An 
 agreement which does not so provide may be fraudulent; or, for 
 some other reason, it may be illegal; but it cannot be champer- 
 tous.* It is quite generally conceded that champerty consists of 
 three elements: (1) the absence of any other interest in the case 
 on the part of the champertor than that arising from his champer- 
 tous contract; * (2) the assumption by the champertor of all ex- 
 penses in conducting the case; * (3) a previous agreement for his 
 
 1 England. — Stanley v. Jones, 7 
 Bing. 369, 20 E. C. L. 165, 4 Bl. Com. 
 135. 
 
 Alabama. — Price v. Carney, 75 Ala. 
 546. 
 
 District of Columbia. — Stanton v. 
 Haskin, 1 MacArthur 558, 29 Am. 
 Eep. 612. 
 
 Georgia. — Ellis v. Smith, 112 Ga. 
 480, 37 S. E. 739. 
 
 Michigan. — Backus v. Byron, 4 
 Mich. 535. 
 
 Jiebraska. — Omaha k E,. V. B,. Co. 
 V. Brady, 39 Neb. 27, 57 N. W. 767. 
 
 OAio.— Weakly v. Hall, 13 Ohio 167, 
 42 Am. Dec. 194. 
 
 Champerty is a species of mainte- 
 nance or a bargain with plaintifif to 
 divide property sued for, if they pre- 
 vail at law; whereupon the champer- 
 tor is to carry on the suit at his own 
 expense (quoting 2 Words and 
 Phrases, 1047). In re Evans, (Utah) 
 130 Pac. 217. 
 
 "Champerty" at common law con- 
 sisted in supporting or maintaining 
 a, suit for some one else in considera- 
 tion of agreement to have a part of 
 the thing in dispute, or some profit 
 
 out of the result of the litigation, or 
 an agreement to divide the receipts 
 from the suit or action. Merchants' 
 Protective Ass'n v. Jacobsen, 22 
 Idaho 636, 127 Pac. 315. 
 
 2 Burnham v. Heselton, 84 Me. 578, 
 24 Atl. 955; Moody v. Harper, 38 
 Miss. 599. Compare Bust v. Larue, 4 
 Litt. (Ky.) 411, 14 Am. Dec. 172. 
 
 3Belding v. Smythe, 138 Mass. 
 530; Hadlock v. Brooks, 178 Mass. 
 425, 59 N. E. 1009 ; Reece v. Kyle, 49 
 Ohio St. 475, 31 N. E. 747, 16 L.R.A. 
 723; Pittsburg, C. C. & St. L. E. Co. 
 V. Volkert, 58 Ohio St. 362, 50 N. E. 
 924; Lewis v. Broun, 36 W. Va. 1, 14 
 S. E. 444. 
 
 4 Moses V. Bagley, 55 Ga. 283 ; Tor- 
 rence v. Shedd, 112 111. 466; Brush v. 
 Carbondale, 229 111. 144, 11 Ann. Cas. 
 121, 82 N. E. 252; Moody v. Harper, 
 38 Miss. 599; Eeece v. Kyle, 49 Ohio 
 St. 475, 31 N. E. 747, 16 L.R.A. 723; 
 Pittsburg, C. C. & St. L. E. Co. v. Vol- 
 kert, 58 Ohio St. 362, 50 N. E. 924. 
 
 The statute de defimtio consp. 
 (33 Edw. I, stat. 2) declared that: 
 "Champerters be they who move pleas 
 or suits, or cause them to be moved 
 
654 CHAMPERTY, BAEEATEY, AND MAINTENANCE. [§ 380 
 
 remuneration from the proceeds of the suit.* The gist of the of- 
 fense consists in the mode of compensation.' The corrupting ele- 
 ment of the contract is its tendency to foment or protract litiga- 
 tion; its dependency for its value upon the termination of suits; 
 and its introduction, to control and manage them, of parties with- 
 out other right or interest than such as is derived from the con- 
 tract.'' 
 
 § 380. Barratry Defined. — Blackstone defines common bar- 
 ratry to be the offense of frequently exciting and stirring up suits 
 and quarrels between his majesty's subjects, either at law or other- 
 wise.' This offense is still recognized in some jurisdictions in 
 this country ; thus, without defining it, a penalty is provided there- 
 for in Pennsylvania.^ So, in some jurisdictions, laws of a simi- 
 lar nature have been enacted with a view of preventing the stirring 
 up of a litigation by attorneys."" Thus an Illinois statute pro- 
 vides that if any person shall ofiicially intermeddle in any suit at 
 common law or chancery that in nowise belongs to or concerns such 
 person, by maintaining or assisting either party, with money or 
 otherwise, to prosecute or defend such suit with a view to promote 
 litigation, he shall be deemed guilty of maintenance, and upon 
 conviction thereof shall be fined and punished as in cases of com- 
 mon barratry.^* It has been held that this statute was not violated 
 by a contract on the part of a citizen with a city to pay all costs in 
 
 by their own procurement, or by oth- Y.) 311; Merritt v. Lambert, 10 
 
 ers, and sue at their proper costs, to Paige (N. Y.) 352; Pittsburg, C. C. 
 
 have part of the land in variance, or & St. L. R. Co. v. Volkert, 58 Ohio 
 
 part of the gains." 5 Com. Dig., p. St. 362, 50 N. E. 924; Weedon r. Wal- 
 
 16. ' lace, Meigs (Tenn.) 286; Martin v. 
 
 BTorrence v. Shedd, 112 111. 466; Veeder, 20 Wis. 466. 
 
 Brush V. Carbondale, 229 111. 144, 11 6 Sedgwick v. Stanton, 14 N. Y. 
 
 Ann. Gas. 121, 82 N. E. 252; Donald- 289. 
 
 son V. Eaton, 136 Iowa 650, 114 N. W. T Price v. Carney, 75 Ala. 546. 
 
 19, 125 Am. St. Rep. 275, 14 L.R.A. 8 4 Bl. Com. 134. 
 
 (N.S.) 1168; Hadlock v. Brooks, 178 9 Act of March 31, 1860, P. L. 382, 
 
 Mass. 425, 59 N. E. 1009; Backus v. § 9, P. & L. Dig. of Laws (1st ed.) p. 
 
 Byron, 4 Mich. 535 ; Omaha & R. V. 1118, § 47. 
 
 R. Co. V. Brady, 39 Neb. 27, 57 N. W. V> See infra, §§ 395-397. 
 
 767; Wallis v. Loubat, 2 Denio (N. " Brush i>. Carbondale, 229 111. 144, 
 
 Y.) 607; In re Blealdey, 5 Paige (N. 11 Ann. Gas. 121, 82 N. E. 252. 
 
§ 381] CHAMPERTY, BAEEATEY, AND MAINTENANCE. 655 
 
 a suit which the city is prosecuting to test the validity of certain 
 laws, providing the city will carry the suit to a final hearing in 
 the Supreme Court.'* So, under an old Ohio statute, the encourag- 
 ing, exciting, and stirring up of any suit, quarrel or controversy, 
 between two or more persons, by certain named officers, including 
 attorneys and counselors at law, with intent to injure such persons, 
 was made an offense punishable by a fine, and liability to the 
 party injured in treble damages.*^ A Wisconsin statute provides 
 that "any person who, for vexation and trouble, shall cause or pro- 
 cure any civil action or proceeding before any court or magistrate 
 to be instituted or carried on in the name of any other' person, 
 without the consent of such person or where there is no such per- 
 son known, shall be punished by imprisonment in the county jail 
 not more than six months, and be liable to pay to any party in- 
 jured by such civil action or proceeding treble the damages that 
 he may have suffered thereby." ** A contract between an attorney 
 and one not an attorney that the latter shall, in consideration of 
 part of the fee to be collected, procure the employment of the for- 
 mer by a third person for the prosecution of a suit, is void as 
 against public policy, independent of statutes prohibiting it, 
 though the non-attorney and the third person be relatives.'* 
 
 § 381. Maintenance Defined. — Maintenance is defined to be 
 an officious intermeddling in a suit in which one is not lawfully in- 
 terested, by maintaining or assisting either party, with money or 
 otherwise, to prosecute or defend it ; and it is held to be an offense 
 against public justice, as it keeps alive strife and contention, and 
 perverts the remedial process of the law into an engine of oppres- 
 sion.'* It has been recently held that an agreement to maintain 
 
 12 BrUBh V. Carbondale, 229 111. 144, Massachusetts. — Manning -o. 
 11 Ann. Cas. 121, 82 N. E. 252. Sprague, 148 Mass. 18, 18 N. E. 673, 
 
 13 Reece v. Kyle, 49 Ohio St. 475, ^2 Am. St. Rep. 508, 1 L.R.A. 516. 
 31 N. E. 747 16 L.R.A. 723. Missouri. — Breeden v. Frankford 
 
 "See § 4469 Wis. Stats. (1898). 
 
 Marine Ace. & Plate Glass Ins. Co., 
 220 Mo. 327, 119 S. W. 576. 
 15 Ford V. Munroe, (Tex.) 144 S. New Hampshire.— Jordan v. GUlen, 
 
 'W. 349. 44]Sr. H. 424. 
 
 18 Indiana. — Quigley r. Thompson, New Yorlc. — Sedgwick v. Stanton, 
 
 53 Ind. 317. 14 N. Y. 289. 
 
656 OHAMPEETY, BAEEATEY, AND MAINTENANCE. [§ 382 
 
 an action made for motives of gain is champertous, even though be- 
 tween relations.*'' But a contract whereby children advance to 
 their mother the expenses of her action for damages for the wrong- 
 ful death of her son, upon her agreement to share equally with 
 them any amount recovered, is not one of champerty or mainte- 
 nance.** By the Roman law, it was a species of the crimen falsi to 
 enter into any confederacy, or to do any other act, to support an- 
 other's lawsuit, by money, witnesses, or patronage.'^ It was con- 
 ceded, however, that a man might maintain the suit of his near 
 kinsman, servant, or poor neighbor, out of charity and compassion, 
 with impunity.^" Thus it has been said by a learned jurist that 
 "if a man were to see a poor person in the street, oppressed and 
 abused, and without the means of obtaining redress, and furnished 
 him with money, or employed an attorney to obtain redress for his 
 wrongs, it would require a very strong argument to convince me 
 that that man could be said to be stirring up strife and litigation, 
 and to be guilty of the crime of maintenance." * 
 
 § 382. Terms Distinguished. — Common barratry, cham- 
 perty, and maintenance are all offenses of a kindred nature, the 
 evils of which are the promotion of unjust, vexatious, or need- 
 less lawsuits, and of a litigious and quarrelsome spirit, and the 
 obstruction and contamination of the fountains and channels of 
 justice, and, as such, they are considered to be crimes against pub- 
 lic order, peace, and morality.^ Champerty differs from mainte- 
 nance, however, in this: that in the latter the person assisting a 
 suitor is to receive no part of the benefits resulting from the ac- 
 tion, while in the former he agrees to assist in the prosecution of 
 the suit, and, as a consideration therefor, to share subsequently in 
 
 OTmo.— Eeece v. Kyle, 49 Ohio St. 20 4 Bl. Com. 134. 
 
 475, 31 N. E. 747, 16 L.E.A. 723. l Jordan v. Gillen, 44 N. H. 424, 
 
 Tennessee. — Sherley v. Riggs, 11 following Findon v. Parker, 11 M. & 
 
 Humph. 53. W. (Eng.) 675. 
 
 "Taylor v. Perkins, (Mo.) 157 S. a Benedict v. Stuart, 23 Barb. (N. 
 
 W. 122. Y.) 420. See also Breeden u. Frank- 
 is Anderson v. Anderson, 12 Ga. ford Marine Ace. & Plate Glass Ins. 
 
 App. 706, 78 S. E. 271. Co., 220 Mo. 327, 119 S. W. 576. 
 19 Quigley v. Thompson, 53 Ind. 
 
 317. 
 
§ 383] CHAMPEETY, BAEEATEY, AND MAINTENANCK 657 
 
 the possible fruits or proceeds of the litigation ; * but the gist of 
 the offense is the same in each, the difference being only in the 
 mode of compensation.* 
 
 Origin, Purpose, and Adoption of English Laws. 
 
 § 383. Origin. — The origin of prohibitory measures against 
 champerty, barratry, and maintenance, is traceable to the early 
 common law, under which it was held to be an offense against pub- 
 lic justice for any man to aid or assist another in litigation. This 
 principle is known to have existed about the close of the eleventh 
 century, when the Iforman conqueror, having subjugated the 
 country, and despoiled the natives of their property, divided all 
 the lands in the kingdom into sixty thousand knight's fees, and 
 distributed them among his followers. The principle was well 
 adapted to the occasion. Indeed, it was appropriate during the 
 whole period that the violence and injustice of the feudal system 
 prevailed.' Later the common law was adopted and enlarged by 
 acts of Parliament commencing with the statute of Westminster 
 (1 ch. 28), and ending with 32 Henry VIII (ch. 9).® It was 
 in 1538 that Henry VIII completed the suppression of the monas- 
 teries in England and proceeded to escheat their estates and grant 
 them to his courtiers and parasites. In 1540 he suppressed the 
 order of the Knights of Malta and seized and dispossessed them of 
 
 8 Quigley v. Thompson, 53 Ind. 317 ; "No minister of the king shall main- 
 Backus V. Byron, 4 Mich. 535; Bree- tain pleas, suits or matters depend- 
 den I'. Frankford Marine Ace. & Plate ing of the king's courts for lands, 
 Glass Ins. Co., 220 Mo. 327, 119 S. tenements or other things, for to 
 W. 576. have part thereof, or other profit by 
 
 * Manning v. Sprague, 148 Mass. covenant made, and he that doth so, 
 
 18, 18 N. E. 673, 12 Am. St. Rep. shall be punished at the king's pleas- 
 
 508, 1 L.E.A. 516; Breeden v. Frank- ure." 5 Com. Dig. 16, Maintenance, 
 
 ford Marine Ace. & Plate Glass Ins. By 2 Stat. Westm., ch. 49, 13 
 
 Co., 220 Mo, 327, 119 S. W. 576. Edw. I, the chancellor, treasurer, 
 
 5 Lytle V. State, 17 Ark. 608. And justices, the king's counsel, clerks in 
 see the argument of counsel in Key v. chancery and of the exchequer, and 
 Vattier, 1 Ohio 132. other officials named, were forbidden 
 
 6 Lytle V. State, 17 Ark. 608; Sedg- to purchase, or to take by gift, lands 
 wick V. Stanton, 14 N. Y. 289. or other matter in suit, pendente lite. 
 
 The terms of the first statute were : 5 Com. Dig. 18. 
 Attys. at L. Vol. II. — 42. 
 
658 CHAMPEETY, BAEEATEY, AND MAINTENANCE. [§ 383 
 
 their estates and revenues. Here was another urgent occasion for 
 strengthening the arm of violence and vsrong in possession, against 
 right and justice dispossessed. And accordingly in this very year 
 (32 Hen. VIII, ch. 9) we find Parliament enacting and confirm- 
 ing the statutes against maintenance and champerty, and declaring 
 it unlawful to purchase any estate unless the vendor or the person 
 under whom he claimed had been in possession within one year 
 preceding the purchase.'' These statutes had their foundation in 
 the existence of a class of nobles who, by their great power and 
 infiuence, were able to overawe the courts and pervert the course 
 of justice.' Thus one statute recites that "many persons having 
 true title to lands, &c., were wrongfully delayed by means that the 
 defendants did make gifts and feofments of their lands in debate, 
 and of their goods, to great men, against whom the pursuants durst 
 not make their pursuits, &c." ' From these statutes, and the com- 
 mon law of which they were held to be afiirmative, jurists imbibed 
 their ideas of champerty. The courts of justice decided that it 
 was unlawful for a master to pay counsel out of his own money, or 
 to speak at the bar, for his servant. It was even decided to be im- 
 lawful for a friend, without compensation, to prosecute the busi- 
 ness of a widow in settling her deceased husband's affairs. And 
 these decisions made no distinction whether the aid was afforded 
 in support of right and justice, or in the furtherance of unfound- 
 ed and vexatious litigation.^" It is curious to see how the doctrine 
 of maintenance has, from time to time, been received at West- 
 minster Hall. At one time not only he who had laid out money 
 to assist another in his cause, but he who, by his friendship or in- 
 terest, saved him an expense that he otherwise would be put to, 
 was held to be guilty of maintenance. Everyone who officiously 
 gave evidence was deemed guilty of maintenance, so that he must 
 have had a subpoena or suppressed the truth. That such a doc- 
 trine, repugnant to every feeling of the human heart, should be 
 laid aside was to be expected.^* And the entire doctrine of main- 
 
 T See argument of counsel in Key v. 10 See argument of counsel in Key 
 
 Vattier, 1 Ohio 132. v. Vattier, 1 Ohio 332. See also 5 
 
 8 Sedgwick v. Stanton, 14 N. Y. Cora. Dig. 16 ; Dyer, 355, B. 
 
 289. "Master i'. Miller, 4 T. R. (Eng.) 
 
 9 1 Richard II. (ch. 9). 340; Lytle v. State, 17 Ark. 608; 
 
§ 384] CHAMPERTY, BAKEATBY, AND MAINTENANCE. 659 
 
 tenance, for reasons, doubtless, then existing, was carried so far 
 as to render it hazardous for any one, not employed profession- 
 ally, in any manner to aid or encourage another in the legal vin- 
 dication of a right. In more modern times, the doctrine of main- 
 tenance has, even in England, become essentially modified, and 
 adapted to a better civilization. In the United States, generally, 
 it is regulated by statute ; and, v^here not so regulated, is received 
 with material modifications.^^ 
 
 § 384. Purpose. — The general purpose of the laws against 
 champerty, maintenance, and barratry, is to prevent ofiicious in- 
 termeddlers from stirring up strife and contention by vexatious or 
 speculative litigation, which would disturb the peace of society, 
 lead to corrupt practices, and pervert the remedial process of the 
 iaw.'^ This view is not peculiar to our common law. The Roman 
 law animadverted with equal severity on this class of men and 
 their practices.^* The old English books abound in denunciations 
 against champerty. Coke calls it'the most odious species of main- 
 tenance. Blackstone informs us that the practice is greatly ab- 
 horred by the law of England, and describes those who engage in 
 it as the pests of civil society, referring at the same time to the 
 severities inflicted upon champertors by the Roman law, in sup- 
 port of his own assertions.*' Thus, it is said to be unlawful main- 
 tenance to assist another with money to carry on his suit, as by 
 retaining counsel for him, or otherwise aiding him in defraying 
 the expense thereof, or by friendship or interest to save such ex- 
 pense when it would otherwise be incurred, or to give any public 
 countenance to another in support of his suit. Such was the gen- 
 eral doctrine of maintenance at an early period in the history of 
 the English law, when it was not unusual for men to enter into 
 
 Newkirk v. Cone, 18 111. 449; Reeee v. v. Johnson, 69 Minn. 488, 72 N. W. 
 
 Kyle, 49 Ohio St. 475, 31 N. E. 747, 563; Dent v. Arthur, 156 Mo. App. 
 
 16 L.R.A. 723. 472, 137 S. W. 285. 
 
 l2Newkirk i. Cone, 18 111. 449; "See Huber v. Johnson, 68 Minn. 
 
 Sedgwick V. Stanton, 14 N. Y. 289. 74, 70 N. W. 806, 64 Am. St. Rep. 456. 
 
 13 Huber v. Johnson, 68 Minn. 74, 16 4 Bl. Com. 135, 136. And see 
 
 70 N. W. 806, 64 Am. St. Rep. 456; also the argument of counsel in Key 
 
 Gammons v. Johnson, 76 Minn. 76, 78 v. Vattier, 1 Ohio 132. 
 N. W. 1035, distinguishing Gammons 
 
660 CHAMPEKTY, BAEEATEY, AND MAINTENANCE. [§ 384 
 
 formal combinations to support each other in lawsuits, and for 
 men of wealth and power to attempt to influence the administra- 
 tion of justice.*^ It is true, as stated in one case, that "champerty 
 presents a strong temptation to engage in it — that of pecuniary 
 profit ; one that has a charm which captivates the man of intellect 
 and learning and genius, as well as the more stupid and unlearned, 
 and one which, unfortunately, presents stronger inducements to 
 those of the legal profession than to any others, because they are 
 better qualified to calculate the chances of success, and they can 
 prosecute suits at less actual expense, and, consequently, hazard 
 less in the chances of litigation. Comparatively few of that pro- 
 fession have all the business that they have time to attend to, and if 
 one devotes time which would not otherwise be actually occupied 
 to the prosecution of a doubtful claim, the client paying the ordi- 
 nary expenses, and he fails to succeed, he is not the poorer for his 
 exertions ; whereas, if he succeeds, he is paid not only for his serv- 
 ices, but for the risk of their loss. He has a strong temptation 
 too, with the chance of such a bargain before him, to deceive his 
 client, and to represent a title or claim as doubtful, or difficult to 
 be established, when he believes it to be clear and easily estab- 
 lished." " But it is equally true, as stated by counsel in his argu- 
 ment in another case, that "if we could consider the subject ab- 
 stracted from the impressions we receive from the early English 
 cases, we would feel none of the abhorrence there spoken of. 
 [Suppose] an individual placed in the power of unfeeling and ra- 
 pacious men is illegally and oppressively stripped of his prop- 
 erty, and turned, with his family, destitute, desolate, and helpless 
 upon the world. A lawyer proposes to investigate his case, to 
 prosecute his claims, and restore him to his rights, at his own risk 
 and charges, and to receive compensation, if any, out of the amount 
 recovered. Is there anything abhorrent to humanity or repugnant 
 to justice in this? It cannot be pretended. The effect is to be 
 produced by reversing the picture, and affixing to the transaction 
 the character ■ deduced from its darkest shades, when abused and 
 applied to the purposes of mischief. An innocent and unoffending 
 man may be vexed and harassed by unfounded and malicious 
 
 16 Sherley v. Eiggs, 11 Humph. " Backus v. Byron, 4 Mich. 535. 
 
 (Tenn.) 53. 
 
§ 385] CHAMPEKTY, BAEEATEY, AND MAINTENANCE. 661 
 
 suits, until, in mere weariness and exhaustion, he shall buy his 
 peace. This may be done. And every personal right may be and 
 is abused. That furnishes no reason why its nature and chai*acter 
 shall be estimated only by its darkest side, its fair, beneficent, and 
 useful traits of character excluded from sight, and its exercise re- 
 strained in regard to the fact that it may be mischievously em- 
 ployed." " 
 
 § 385. Adoption of English Laws in United States. — 
 
 The English laws against champerty, barratry, and maintenance 
 are said to be in force, as a part of the common law, in some juris- 
 dictions in the United States.'® And it has been asserted that 
 there is nothing in the common law relating to champerty and 
 maintenance that is not applicable to our condition. "The race 
 of intermeddlers and busybodies is not extinct. It was never con- 
 fined to Great Britain ; and the little band of refugees who landed 
 from the Mayflower on the coast of New England were not entirely 
 free from the vice of intermeddling in the concerns of other peo- 
 ple. It is as prevalent a vice in the United States as it ever was 
 in England, and we do not see but that a law restraining inter- 
 meddlers from stirring up strife and litigation betwixt their neigh- 
 bors is wholesome and necessary." ^'' So champerty, being an 
 
 18 See argument of counsel in Key Marine Accident, etc., Ins. Co., 220 
 V. Vattier, 1 Ohio 132. And see Mo. 327, 119 S. W, 576; Dent v. Ar- 
 infra, § 386 and § 421. thur, 156 Mo. App. 472, 137 S. W. 
 
 19 United States. — Gregerson v. Im- 285. 
 
 lay, 4 Blatchf. 503, 10 Fed. Cas. No. 0?wo.— Weakly p. Hall, 13 Ohio 167, 
 
 5,795; Globe Works v. V. S. 45 Ct. CI. 42 Am. Dec. 194; Eeece v. Kyle, 49 
 
 497. Ohio St. 475, 31 N. E. 747, 16 L.E.A. 
 
 Indiana. — Quigley v. Thompson, 53 723. 
 
 Ind. 317. Virginia. — Roller v. Murray, 107 
 
 Iowa. — Boardman v. Thompson, 25 Va. 527, 59 S. E. 421. 
 
 Iowa 487. Wisconsin. — Allard v. Lamirande, 
 
 Kentucky. — Miles v. Collins, 1 29 Wis. 502. 
 
 Mete. 308; Lynn v. Moss, 62 S. W. 20 Duke v. Harper, 66 Mo. 51, 27 
 
 712, 23 Ky. L. Rep. 214. Am. Rep. 314; Breeden v. Frankford 
 
 Louisiana. — Livingston v. Cornell, Marine Accident, etc., Ins. Co., 220 
 
 2 Mart. (0. S.) 281; Mazureau v. Mo. 327, 119 S. W. 576; Dahms v. 
 
 Morgan, 25 La. Ann. 281. Sears, 13 Ore. 47, 11 Pac. 891. 
 
 Missouri. — Breeden v. Frankford 
 
662 
 
 CHAMPEETY, BAEEATEY, AND MAINTENANCE. [§ 385 
 
 offense at common law, is to be presumed to be against the law of 
 another state unless the contrary appears.* With us, however, such 
 laws are administered in a very different spirit from that which 
 seems to have prevailed in England ; thus while the essential prin- 
 ciples of the common law are recognized, their enforcement here 
 is confined to those cases wherein it appears that one is actually 
 engaged in stirring up vexatious litigation and strife.® The law 
 of the state wherein an alleged champertous suit is brought will 
 govern in determining whether or not champerty exists.* These 
 laws, however, were never favored in this country,* and in most 
 jurisdictions they have either given way to statutes, or have been 
 disregarded as unsuited to the conditions prevailing here.* There 
 
 1 Thurston v. Percival, 1 Pick. 
 (Mass.) 415. 
 
 ^Illinois. — ^McGoon v. Ankeny, 11 
 111. 558; Gilbert v. Holmes, 61 111. 
 548; Thompson v. Reynolds, 73 111. 
 
 II, overruling Newkirk v. Cone, 18 
 
 III. 449; Geer v. Frank, 179 111. 570, 
 53 N. E. 965, 45 L.R.A. 110, af- 
 firming 79 111. App. 195. 
 
 Michigan.- — Backus i;. Byron, 4 
 Mich. 535. 
 
 Minnesota. — Huber r. Johnson, 68 
 Minn. 74, 70 N. W. 806, 64 Am. St. Rep. 
 456; Gammons v. Johnson, 76 Minn. 
 76, 78 N. W. 1035, distinguishing 
 Gammons v. Johnson, 69 Minn. 488, 
 72 N. W. 563. 
 
 Missouri. — ^Dent v. Arthur, 156 Mo. 
 App. 472, 137 S. W. 285. 
 
 'New Hampshire. — Christie v. Saw- 
 yer, 44 N. H. 298. 
 
 Oregon. — Dahms v. Sears, 13 Ore. 
 47, 11 Pac. 891. 
 
 3 Roller V. Murray, 107 Va. 527, 
 59 S. E. 421. 
 
 4 United States. — Roberts v. Cooper, 
 20 How. 467, 15 U. S. (L. ed.) 969. 
 
 Illinois. — Dunne v. Herrick, 37 111. 
 App. 180. 
 
 Massachusetts. — Thurston v. Perci- 
 val, 1 Pick. 417. 
 
 Missouri. — Dent i: Arthur, 156 Mo. 
 App. 472, 137 S. W. 285. 
 
 Pennsylvania. — Foster v. Jack, 4 
 Watts 334. 
 
 Oftio.— Reece v. Kyle, 49 Ohio St. 
 475, 31 N. E. 747, 16 L.R.A. 723. 
 
 Tennessee. — Newnan v. Washington, 
 Mart. & Y. 79. 
 
 6 United States. — Peck v. Heuiich, 
 167 U. S. 624, 17 S. Ct. 927, 42 U. S. 
 (L. ed.) 302. See Courtright v. 
 Burnes, 13 Fed. 317. 
 
 Connecticut. — Richardson v. Row- 
 land, 40 Conn. 565. 
 
 Georgia. — Ellis v. Smith, 112 Ga. 
 480, 37 S. E. 739. 
 
 Idaho. — Merchants' Protective 
 A&s'n V. Jacobsen, 22 Idaho 63G, 127 
 Pac. 315. 
 
 Illinois. — Newkirk v. Cone, 13 111. 
 449; Brush v. Carbondale, 229 111. 
 144, 11 Ann. Cas. 121, 82 N. E. 252. 
 
 Kentucky. — Davis v. Sharron, 15 
 B. Mon. 64; Roberts v. Yancey, 94 
 Ky. 243, 21 S. W. 1047, 42 Am. St. 
 Rep. 357, 15 Ky. L. Rep. 10, 14 Ky. 
 L. Rep. 42 ; WehmhofiF v. Rutherford, 
 98 Ky. 91, 32 S. W. 288. 
 
 Massachusetts. — Allen v. Hawks, 13 
 Pick. 79; Scott v. Harmon, 109 Mass. 
 237, 12 Am. Rep. 685; Manning v. 
 
§ 385] CHAMPBETY, BAEEATEY, AND MAINTENANCE. 663 
 
 are such broad distinctions in the state of society between Great 
 Britain and this country, that the reasons which make a law 
 against maintenance and champerty salutary or necessary there, 
 do not exist here.° And in this connection may be noticed a dis- 
 tinction between the English system of administering justice and 
 our own touching attorneys and counselors and their compensation, 
 which is an important ingredient in jconsidering the question of 
 champerty. Under the English law there is a total incapacity in 
 counsel to make any contract whatever with his client on account 
 of his professional services, much less a contract for a share of the 
 thing in suit, although he was permitted to accept a fee as a gra- 
 tuity. And the same is true of the attorney, who can make no 
 other contract with his client than that which the law had already 
 made for him in assigning to every service its fixed and appropri- 
 ate compensation.'' It would not be wise to carry rules adopted 
 originally for the purpose of preventing the powerful from op- 
 pressing the weak by groundless suits in the courts, to the extent 
 of hindering the weak in efforts to avail themselves of lawful rem- 
 edies against the powerful, now that the conditions making the an- 
 cient rules necessary have substantially disappeared, and new con- 
 ditions have arisen by reason of which it has become the interest 
 of the powerful to embarrass and hinder the dependent and weak 
 
 Sprague, 148 Mass. 18, 18 N. E. 673, 260, 28 Pac. 11, 28 Am. St. Eep. 752, 
 
 12 Am. St. Rep. 508, 1 L.E.A. 516. 14 L.E.A. 745. 
 
 Michigan. — Backus v. Byron, 4 Tmnessee. — Benton v. Henry, 2 
 
 Mich. 535; Wildey «. Crane, 63 Mich. Cold. 83; Sherley v. Riggs, 11 
 
 720, 30 N. W. 327; Foley v. Grand Humph. 53; Moore v. Campbell Acad- 
 
 Rapids, etc., R. Co., 157 Mich. 67, 121 ■ «™y' ^ Yerg. 115. 
 
 N. W. 257, 16 Detroit Leg. N. 246. Teooas.—Bentimk v. Franklin, 38 
 
 Tex. 458; Wheeler v. Riviere, 49 S. 
 
 ^ew Jersey. — Schomp v. Schenck, 
 40 N. J. L. 195, 29 Am. Rep. 219. 
 New York. — Sedgwick v. Stanton, 
 
 W. 697. 
 
 Washington. — Smits v. Hogan, 35 
 
 Wash. 290, 1 Ann. Cas. 297, 77 Pac. 
 
 ' ■ ' ""■ 390. See also the cases cited through- 
 
 Div. 135, 41 N. Y. S. 146; Zogbaum „„t ^j^is section; and see the local 
 
 V. Parker, 66 Barb. 341, affirmed 55 jg^^g 
 
 N. Y. 120. And see Clark v. Grosh, e Davis v. Webber, 66 Ark. 190, 49 
 
 81 Misc. 407, 142 N. Y. S. 966. s. W. 822, 74 Am. St. Rep. 8], 45 
 
 0/wo.— Eeece v. Kyle, 49 Ohio St. L.R.A. 196; Richardson v. Rowland, 
 475, 31 N. E. 747, 16 L.R.A. 723. 40 Conn. 565. 
 
 Oregon. — Brown v. Bigne, 21 Ore. 'Lytle v. State, 17 Ark. 608. 
 
664 
 
 CHAMPERTY, BAEEATEY, AND MAINTENAIirCE. [§ 386 
 
 from obtaining speedy justice in the courts.* Nor would it be 
 judicious to extend arbitrarily those rules which say that a given 
 contract is against public policy, for men of full age and compe- 
 tent understanding ought to have the utmost liberty of contracting ; 
 and their contracts, when entered into fully and voluntarily, should 
 be enforced by the courts, for it is a paramount public policy that 
 courts should not lightly interfere with the freedom of contract.' 
 
 As Affecting Contracts for Compensation. 
 
 § 386. Contingent Fees. — It is doubtless the more modern 
 doctrine that the mere taking a case on a contingent fee does 
 not constitute champerty; and that it is not unlawful for an 
 attorney to carry on a suit for another for a share of what may 
 be recovered, at least unless he assumes the risks of litigation 
 by indemnifying his client against costs and expenses." In such 
 cases the attorney has no interest in the litigation excepting 
 to the extent of his legal services, and if the contract is not un- 
 
 8 Reece v. Kyle, 49 Ohio St. 475, 31 
 N. E. 747, 16 L.K.A. 723. 
 
 SLytle V. State, 17 Ark. 608; Reece 
 V. Kyle, 49 Ohio St. 475, 31 N. E. 
 747, 16 L.R.A. 723. 
 
 10 United States. — ^Northwestern S. 
 S. Co. V. Cochran, 191 Fed. 146, 111 
 C. C. A. 626. 
 
 Arkansas. — Davis v. Weber, 66 
 Ark. 190, 49 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 District of Columbia. — Stanton v. 
 Haskin, 1 MacArthur 558, 29 Am. 
 Rep. 612. 
 
 Illinois. — Dunne v. Herrick, 37 111. 
 App. 180. 
 
 Indiana. — Tron v. Lewis, 31 Ind. 
 App. 178, 66 N. E. 490. 
 
 Iowa. — ^McDonald v. Chicago, etc., 
 R. Co., 29 Iowa 170; Winslow v. Cen- 
 tral Iowa R. Co., 71 Iowa 197, 32 N. 
 W. 330; Rickel v. Chicago, R. I. & 
 P. R. Co., 112 Iowa 148, 83 N. W. 
 957; Wallace v. Chicago, M. & St. 
 
 P. R. Co., 112 Iowa 565, 84 N. W. 
 662; Barthell v. Chicago, M. & St. 
 P. R. Co., 138 Iowa 688, 116 N. W. 
 813. 
 
 Kentucky. — Newport Rolling Mill 
 Co. V. Hall, 147 Ky. 598, 144 S. W. 
 760. 
 
 Louisiana. — Clay v. Ballard, 9 Rob. 
 308, 41 Am. Dec. 328; La Societe, 
 etc., V. Morris, Man. Unrep. Cas. 1. 
 
 Michigan. — Wildey v. Crane, 63 
 Mich. 720, 30 N. W. 327. 
 
 Mirmesota. — Canty v. Latterner, 31 
 Minn. 239, 17 N. W. 385; Gammons 
 V. Johnson, 76 Minn. 76, 78 N. W. 
 1035, distinguishing Gammons v. 
 Johnson, 69 Minn. 488, 72 N. W. 563. 
 
 Missouri. — Johnson v. United R. 
 Co., 247 Mo. 326, 152 S. W. 362, 374; 
 Taylor v. Perkins, 157 S. W. 122. 
 
 'New Hampshire. — Shapley v. Bel- 
 lows, 4 N. H. 355; Christie v. Saw- 
 yer, 44 N. H. 298. 
 
 JTeio Torfc.^Marsh v. Holbrook, 3 
 
§ 386] CHAMPEETY, BAREATEY, AND MAINTENANCE. 665 
 
 conscionable or unreasonable in its terms it will be enforced.*' 
 And the fact that the attorney takes an assignment of a part of 
 the cause of action to secure his fee does not make the contract 
 champertous." The suitor may be unable to pay in advance, and 
 without credit, or he may deem such an arrangement most prudent 
 and best calculated to insure vigilance on the part of his counsel ; 
 and if he has a cause of action the courts are and should be open 
 for its legal prosecution.'* The fact that the practice of stipulat- 
 ing beforehand for professional fees, contingent on the result of 
 the litigation, is sometimes abused, and exposes the profession to 
 misapprehension and illiberal remark, is not a sufficient excuse 
 for refusing to enforce such a contract, when characterized 
 throughout by "all good fidelity" to the client.'* In some states, 
 however, it seems that contracts for contingent fees are deemed 
 to be champertous where the agreement is to pay the attorney an 
 exorbitant sum in the event of recovery.'^ It is, of course, the 
 duty of the courts carefully to scrutinize such contracts to see 
 that no improper advantage is taken either of the ignorance or ne- 
 cessity of those who enter into them; and if it appears that they 
 are obtained by any undue influence of the attorney over the client. 
 
 Abb. App. Dec. 176; Fiteh v. Garden- West Virginia. — Lewis v. Broun, 36 
 
 ier, 2 Keyes 516; Fowler v. Callan, W. Va. 1, 14 S. E. 444. 
 102 N. Y. 395, 7 N. E. 169, reversing Wisconsin. — Ryan v. Martin, 16 
 
 4 Civ. Proe. 413, 12 Daly 263. Wis. 57; Allard v. Lamirande, 29 
 
 OMo. — Spencer v. King, 5 Ohio Wis. 502 ; Gilchrist v. Brahde, 58 Wis. 
 
 182; State V. Ampt. 6 Ohio Dec. (Re- 184, 15 N. W. 817; Dockery v. Me- 
 
 print) 699, 7 Am. L. Rec. 469. Lellan, 93 Wis. 381, 67 N. W. 733. 
 
 Pennsylvania. — Williams v. Phila- n Newkirk v. Cone, 18 111. 449; 
 
 delphia, 208 Pa. St. 282, 57 Atl. 578. Geer v. Frank, 179 111. 570, 53 N. E. 
 
 Teaios.— Stewart v. Houston & T. 965, 45 L.R.A. 110. 
 C. R. Co., 62 Tex. 246. Win re Aldrich, (Vt.) 86 Atl. 801. 
 
 Utah. — Croco v. Oregon Short Line 13 Newkirk v. Cone, 18 111. 449 ; 
 
 R. Co., 18 Utah 311, 54 Pac. 985, 44 Whinery v. Brown, 36 Ind. App. 276, 
 
 L.R.A. 285. 75 N. E. 605. 
 
 Vermont. — In re Aldrich, 86 Atl. l* Whinery v. Brown, 36 Ind. App. 
 
 801. 276, 75 N. E. 605. 
 
 Virginia. — Nichels v. Kane, 82 Va. 16 Eutler v. Legro, 62 N. H. 350, 13 
 
 309. Am. St. Rep. 573; Cross v. Bloomer, 
 
 Washington. — Smits v. Hogan, 35 6 Baxt. (Tenn.) 74. 
 Wash. 290, 1 Ann. Cas. 297, 77 Pac. 
 390. 
 
666 CHAMPEETY, BAEEATEY, AND MAINTENANCE. [§ 387 
 
 or by fraud or imposition, or that the compensation is clearly ex- 
 cessive, the party aggrieved -will be protected ; ^* but the mere fact 
 that a larger fee is provided for when contingent on success than 
 vs^ould be either asked or paid were the payment made in advance, 
 is no good reason for declaring the whole contract void." The 
 subject of contingent fees generally will be considered hereafter 
 in connection with contracts for compensation.*' 
 
 § 387. In Suits to Recover Land. — At common law, and un- 
 der ancient statutes in aid thereof, the sale and purchase of titles 
 where the vendor was not in possession, and of doubtful and dis- 
 puted titles, with the view to carrying on suits for maintaining 
 them, whether the vendor was in or out of possession, or whether 
 the title was good or bad, were prohibited under severe penalties. 
 So, also, the maintaining and carrying on of suits upon agree- 
 ments to have a part of the land, or right to be recovered, or any- 
 thing produced therefrom, were unlawful, and punished as of- 
 fenses.*® The objection to this method of compensating an attor- 
 ney, by agreeing to give him a part of the thing in litigation, has 
 also been recognized in this country.^" Thus it has been said that 
 an agreement by an attorney at law to prosecute at his own ex- 
 pense a suit to recover land, in which he personally has and claims 
 no title or interest either present or contingent, in consideration 
 of receiving a certain proportion of what he may recover, is con- 
 trary to public policy as tending to stir up baseless litigation.* 
 
 16 Whinery v. Brown, 36 Ind. App. veyance of any lands or tenements or 
 
 276, 75 N. E. 605. of any interest therein, and who is 
 
 1'? See infra, § 394. not in the lawful possession thereof 
 
 18 See infra, §§ 421-427. ^t ^^^ time, from any person. not be- 
 
 19 Bacon's Abr. title "Maintenance," '"S i" *^® possession thereof, while 
 A. and D.; 3 Thomas Coke, book 3, ^"''^ ^^"^^ °'' tenements shall be the 
 chap. 12; 1 Hawkins PI. book 1, chap. ^"''J^'^* °^ controversy by action in 
 27. See also Newkirk v. Cone, 18 111. <=""*' "^"7*"^ ^'^^ pendency of such 
 
 action and that the grantor was not 
 
 in the possession of such lands or 
 
 tenements, shall be punished by im- 
 
 Wisconsin. — Section 4438 Wis. pnsonment in the county jail not 
 
 Stats. (1898) provides that "any of- more than one year or by fine not 
 
 fieer, judicial or ministerial, or any exceeding two hundred dollars." 
 
 other person who shall take any con- l Peck v. Heurich, 167 U. S. 624, 
 
 449. 
 
 20 See supra, § 385. 
 
§ 388] CHAMPEETT, BAEEATEY, AND MAINTENANCE. 667 
 
 In many parts of the United States, however, the ancient English 
 statutes of champerty and maintenance have either never been 
 adopted, or have become obsolete ; ^ and agreements vchereby an 
 attorney is to receive a part of the land in controversy, as compen- 
 sation for his services in connection with the recovery thereof, have 
 been held to be valid * on the same grounds that agreements for 
 contingent fees in other cases have been sustained.* 
 
 § 388. Contracting for Part of Recovery Distinguished 
 from Creating Indebtedness for Fees. — In some jurisdictions 
 a contract for an attorney's compensation will be deemed 
 champertous where it provides that payment is not only to 
 be contingent on success, but also that such payment is to be a 
 part of the amount recovered by him for the client.' Agreements 
 of this nature may, on the application of the client, be set aside 
 in equity.® But it is also held, even in the states wherein this 
 principle is maintained, that a contract for an attorney's compen- 
 sation may be valid notwithstanding that it is, in effect, contin- 
 gent on the success of the litigation, providing that the agreement 
 creates an indebtedness on the part of the client for which the at- 
 torney would have a cause of action against him,'' or, possibly, 
 
 17 S. Ct. 927, 42 U. S. (L. ed.) 302; L. Rep. 42; Leonard v. Boyd, 71 S. 
 
 Jenkins v. Bradford, 59 Ala. 400. W. 508, 24 Ky. L. Rep. 1320. 
 
 2 See supra, § 385. See also Peck Massachusetts. — ^Ackert v. Barker, 
 
 r. Heurich, 167 U. S. 624, 17 S. Ct. 131 Mass. 436; Belding v. Smjthe, 
 
 927, 42 U. S. (L. ed.) 302. 138 Mass. 530; Gargano v. Pope, 184 
 
 SMcPherson v. Cox, 96 U. S. 404, Mass. 571, 69 N. E. 343, 100 Am. St. 
 
 24 U. S. (L. ed.) 746; Newkirk v. Rep. 575. 
 
 Cone, 18 111. 449; Wilhite v. Roberts, Minnesota. — Huber v. Johnson, 68 
 
 4 Dana (Ky.) 172; Ramsey v. Trent, Minn. 74, 70 N. W. 806, 64 Am. St. 
 
 10 B. Mon. (Ky.) 336; Shelton v. Rep. 456. 
 
 Franklin, 224 Mo. 342, 123 S. W. 6 Belding v. Smythe, 138 Mass. 
 
 1084, 135 Am. St. Rep. 537. See also 530; Gargano v. Pope, 184 Mass. 571, 
 
 Chester v. Jumel, 125 N. Y. 237, 26 69 N. E. 343, 100 Am. St. Rep. 575. 
 
 N. E. 297. t Alabama. — ^Ware v. Russell, 70 
 
 4 See supra, § 386. Ala. 174, 45 Am. Rep. 82. See Price 
 
 6 Alabama. — ^Dumas v. Smith, 17 v. Carney, 75 Ala. 546. 
 
 Ala. 305. Maryland. — Wheeler v. Harrison, 
 
 Kentucky. — Roberts v. Yancey, 94 94 Md. 147, 50 Atl. 523. 
 
 Ky. 243, 21 S. W. 1047, 42 Am. St. Massachusetts.— Blaisden v. Ahern, 
 
 Rep. 357, 15 Ky. L. Rep. 10, 14 Ky. 144 Mass. 393, 11 N. E. 681, 59 Am. 
 
668 
 
 GHAMPEETY, BAERATEY, AND MAINTENANCE, [§ 388 
 
 does not provide that such indebtedness shall not exist.* Thus the 
 contingency of the fee necessary to constitute champerty is made 
 dependent upon the terms of the contract, not on the inability of 
 the party to pay unless successful in the suit.® It is immaterial 
 that the avails of the siiit, or a part of them, are pledged as se- 
 curity, or that such avails are the means and the security on which 
 the attorney relies for payment." 'Not is it material that the 
 amount of the compensation is to be measured by the amount of 
 the recovery, as, for instance, a certain percentage thereof.*^ Some 
 light may be thrown on the view of contingent fees as champer- 
 
 Eep. 99; Hadlock v. Brooks, 178 
 Mass. 425, 59 N. E. 1009. 
 
 In Phillips V. Louisville & N. R. 
 Co., 153 Fed. 795, in speaking of 
 agreements of this character, it was 
 said: "It is insisted that the ■written 
 contract between counsel and the 
 plaintiff in this cause in reference 
 to the payment of their fees, which 
 written contract is made a part of 
 petition, shows upon its face that the 
 fee provided therein is not in fact 
 a contingent fee, but merely a con- 
 tract setting forth the basis upon 
 which the amount of the fee to be 
 paid is to be determined, and it is 
 insisted that therefore the security 
 of costs should not be required of 
 the plaintiff. ... It will be 
 noted that the agreement stating the 
 payment of the fee is in the following 
 words: 'I hereby agree to pay him 
 in full settlement of his fee an amount 
 of money equal to one-third of any 
 amount recovered by him in said 
 cause by settlement or otherwise.' 
 Now, does the mere statement in 
 writing that the fee to be paid is an 
 amount of money equal to one-third 
 of any amount recovered change in 
 fact the contingent nature of the 
 contract? Clearly not. To hold other- 
 wise would be but a mere juggle of 
 
 words. It will be noted in the writ- 
 ten contract that there is no provi- 
 sion whatever for the payment of the 
 fee in ease nothing is recovered of 
 the defendant in the suit. The plain- 
 tiff is admitted to be a pauper and 
 unable to pay any fee in any event, 
 save alone in the happening of the 
 event of his recovery in this suit. 
 Then from what source is the fee to 
 be recovered? The conclusion is in- 
 evitable, from the amount of the re- 
 covery alone. Again, the basis of 
 the fee charged is not gauged, nor at- 
 tempted to be gauged, by the amount 
 of skill, time, or trouble required of 
 counsel in the case, but is guaged and 
 fixed alone upon the basis of the 
 amount of recovery.'' 
 
 8 Hadlock v. Brooks, 178 Mass. 425, 
 59 N. E. 1009. 
 
 9 Moore v. Campbell Academy, 9 
 Yerg. (Tenn.) 115. See also Lyttle 
 V. Goldberg, 131 Wis. 613, 111 N. W. 
 718. 
 
 10 Walker v. Cuthbert, 10 Ala. 213 ; 
 Tapley v. Coffin, 12 Gray (Mass.) 
 420; Blaisdell v. Ahem, 144 Mass. 
 393, 11 N. E. 681, 59 Am. Rep. 99; 
 Hadlock v. Brooks, 178 Mass. 425, 
 59 N. E. 1009; Christie v. Sawyer, 
 44 N. H. 298. 
 
 11 Kentucky. — Evans v. Bell, 6 Dana 
 
§ 389] OHAMPEETT, BAEEATEY, AND MAINTENANCE, 
 
 669 
 
 tous taken by the cases considered in this section by the follow- 
 ing quotation : "What is the meaning of a champertous contract ? 
 It is this : If, in the assumed case of you going to a lawyer to hire 
 him to take a certain case, you said to him : 'I haven't any money, 
 and unless I win this case I shan't have any money to pay you. 
 Will you take this case, charge me either a certain percentage, or 
 such amount as you think best, if you win the case, and, if you 
 lose the case, charge me nothing ?' — that is a champertous contract ; 
 that is an illegal contract and is a void contract. There are con- 
 tracts that look a great deal like it upon the face of it that are 
 not void; that is, are not champertous. It is competent for the 
 parties to say, 'I have no money and I can't pay you until I get 
 the verdict.' If they stop there — if they simply make it a ques- 
 tion of the time of payment — it is perfectly competent. It is per- 
 fectly competent for the client to say, and the lawyer to agree 
 to it, 'I will pay you, if you are successful, a quarter of what you 
 recover ;' if they don't add the further condition, 'nothing if you 
 don't recover.' Or, in other words, to put it in brief, if they make 
 the payment of any fee at all contingent on the success, that is a 
 champertous contract." ^ 
 
 § 389. Agreement to Pay Costs or Expenses. — As stated 
 heretofore,^' the payment of the costs or expenses of litigation is 
 usually considered an essential element of champertous agree- 
 ments ; '* under some statutes, however, a contract may be cham- 
 
 479; Ramsey v. Trent, 10 B. Mon. I* Illinois. — West Chicago Park 
 
 336; Cumberland, etc., R. Co. v. Har- Com'rs. v. Coleman, 108 111. 591; Cal- 
 
 rison, 1 Ky. L. Rep. 411. kins v. Pease, 125 111. App. 270. 
 
 Missouri. — Taylor v. St. Louis Iowa. — Jewel v. Neidy, 61 Iowa 
 
 Transit Co., 198 Mo. 715, 97 S. W. 299, 16 N. W. 141. 
 
 155. Kansas. — Aultman v. Waddle, 40 
 
 New York.— In re Fitzsimons, 174 Kan. 195, 19 Pac. 730. 
 
 N. Y. 15, 66 N. E. 554, reversing 77 Massachusetts. — Scott v. Harmon, 
 
 App. Div. 345, 12 N. Y. Ann. Cas. 109 Mass. 237, 12 Am. Rep. 685. 
 
 250, 79 N. Y. S. 194. Mississippi. — Moody v. Harper, 38 
 
 Tennessee. — Moore v. Campbell Miss. 599. 
 
 Academy, 9 Yerg. 115. Missouri. — Duke v. Harper, 2 Mo. 
 
 liiHadlock v. Brooks, 178 Mass. App. 1, affirmed 66 Mo. 51, 27 Am. 
 
 425, 59 N. E. 1009. Rep. 314; Ball i: Royal Ins. Co., 129 
 
 13 See supra, § 379. Mo. App. 34, 107 S. W. 1097. 
 
670 
 
 CHAMPEETT, BAEEATEY, ANI> MAINTENANCE. [§ 389 
 
 pertous even though there is no obligation on the part of the 
 attorney to pay costs or expenses.*' 
 
 As a general rule an agreement under which an attorney con- 
 tracts to conduct litigation at his own cost and expense, in con- 
 sideration of all or a part of the recovery, is champertous,*^ how- 
 
 Nebraska. — Omaha & R. V. R. Co. 
 V. Brady, 39 Neb. 27, 57 N. W. 767. 
 
 West Virginia. — Anderson v. Cara- 
 way, 27 W. Va. 385. 
 
 Wisconsin. — Sparling v. U. S. Sugar 
 Co., 136 Wis. 509, 117 N. W. 1055. 
 
 IS Gregerson v. Imlay, 4 Blatohf . 
 503, 10 Fed. Cas. No. 5,795; Ackert 
 V. Barker, 131 Mass. 436. See also 
 supra, § 388. 
 
 i-^ England. — Hilton v. Woods, L. 
 R. 4 Eq. 432, 36 L. J. Ch. 491, 16 
 L. T. N. S. 736, 15 W. R. 1105; In 
 re Masters, 4 Dowl. 18, 1 Hurl & W. 
 348; Strange v. Brennan, 15 Sim. 
 346, affirmed 2 Coop. t. Cot. 1, 15 L. 
 J. Ch. 389, 10 Jur. 649; Earle v. 
 Hopwood, 9 C. B. N. S. 566, 90 E. 
 C. L. 566, 30 L. J. C. PI. 217, 7 Jur. 
 N. S. 775, 3 L. T. N. S. 670, 9 W. 
 R. 272. 
 
 Canada. — Colville v. Small, 22 Ont. 
 L. Rep. 426, 19 Ann. Cas. 515; O'Con- 
 nor V. Gemmill, 26 Ont. App. 27. 
 
 United States. — Peck v. Heurich, 
 167 U. S. 624, 17 S. Ct. 927, 42 U. S. 
 (L. ed.) 302; Globe Works v. U. S., 
 45 Ct. CI. 497. 
 
 Colorado. — See O'JDriscoU v. Doyle, 
 31 Colo. 193, 73 Pac. 27. 
 
 District of Columbia. — Johnson v. 
 Van Wyck, 4 App. Cas. 294. 
 
 Georgia. — Taylor v. Hinton, 66 Ga. 
 743. 
 
 Illinois. — Geer v. Frank, 179 111. 
 570, 53 N. E. 965, 45 L.R.A. 110. af- 
 firming 79 III. App. 195; Granat v. 
 Kruse, 114 111. App. 488, dismissed 
 213 111. 328, 72 N. E. 744. See also 
 
 Phillips V. South Park Com'rs., 119 
 III. 626, 10 N. E. 230. 
 
 Indiana. — Quigley v. Thompson, 53 
 Ind. 317. 
 
 lovja. — Barngrover v. Pettigrew, 
 128 Iowa 533, 104 N. W. 904, 111 
 Am. St. Rep. 206, 2 L.R.A.(N.S.) 
 260. 
 
 Kansas. — Atchison, T. & S. F. R. 
 Co. V. Johnson, 29 Kan. 218; More- 
 land V. Devenney, 72 Kan. 471, 83 
 Pac. 1097. 
 
 Massachusetts. — Lancy v. Havender, 
 146 Mass. 615, 16 N. E. 464; Hadloek 
 V. Brooks, 178 Mass. 425, 59 N E. 
 1009. 
 
 Minnesota. — Huber v. Johnson, 68 
 Minn. 74, 70 N. W. 806, 64 Am. St. 
 Rep. 456. 
 
 Missouri. — Comstock v. Flower, 109 
 Mo. App. 275, 84 S. W. 207; Taylor 
 V. Perkins, 157 S. W. 122. 
 
 New York. — Coughlin r. New York 
 Cent., etc., R. Co., 71 N. Y. 443, 27 
 Am. Rep. 75; McCoy v. Gas Engine 
 & Power Co., 152 App. Div. 642, 137 
 N. Y. S. 591 ; Taylor v. Enthoven, 88 
 N. Y. S. 138. 
 
 Ohio. — Reeee v. Kyle, 49 Ohio St. 
 475, 31 N. E. 747, 16 L.R.A. 723; 
 Brown v. Ginn, 66 Ohio St. 316, 64 
 N. E. 123 ; Emslie v. Ford Plate Glass 
 Co., 25 Ohio Cir. Ct. Rep. 548. 
 
 Rhode Island. — Martin v. Clarke, 8 
 R. I. 389, 5 Am. Rep. 586. 
 
 Tennessee. — M. & V. Code, § 2450; 
 Hayney v. Coyne, 10 Heisk. 339; 
 Weedon v. Wallace, Meigs 286. 
 
 Utah. — Croeo v. Oregon Short Line 
 
§ 389] CHAMPERTY, BAEEATEY, AND MAINTENANCE. 
 
 671 
 
 ever honestly entered into and carried out,^'' and it will not be 
 enforced either at law or in equity.^' So, an agreement by which 
 the attorney indemnifies the client against costs, is no less cham- 
 pertous than one in which it is affirmatively provided that coun- 
 sel shall pay the costs.^' 
 
 On the other hand, many authorities recognize the fact that there 
 are some necessary and proper expenses which an attorney may 
 agree to pay in connection with the prosecution of a lawsuit.^" 
 Indeed, it is not uncommon for attorneys, in commencing actions 
 for poor people, to advance the money necessary for the prosecu- 
 tion of the suit upon the credit of the cause, thus enabling those 
 in indigent circumstances to obtain justice ; ' to denounce this 
 practice as improper would be to condemn the daily acts of many 
 
 R. Co., 18 Utah 311, 54 Pae. 985, 44 
 L.R.A. 285; Nelson v. Evans, 21 
 Utah 202, 60 Pae. 557; In re Evans, 
 22 Utah 366, 62 Pae. 913, 83 Am. St. 
 Rep. 794, 53 L.R.A. 952. 
 
 Vermont. — See Hamilton v. Gray, 
 67 Vt. 233, 31 Atl. 315, 48 Am. St. 
 Rep. 811. 
 
 Virginia. — Nickels v. Kane, 82 Va. 
 309; Roller v. Murray, 112 Va. 780, 
 Ann. Gas. 1913B 1088, 72 S. E. 665, 
 38 L.R.A.(N.S.) 1202. 
 
 Wisconsin. — Stearns v. Felker, 28 
 Wis. 594; Kelly v. Kelly, 86 Wis. 
 170, 56 N. W. 637. 
 
 IV Thompson v. Reynolds, 73 111. 11. 
 
 l8Geer v. Frank, 179 111. 570, 53 
 N. E. 965, 45 L.R.A. 110, affirming 
 79 111. App. 195. 
 
 19 Roller V. Murray, 107 Va. 527, 
 59 S. E. 421. 
 
 But see Shelton v. Franklin, 224 
 Mo. 342, 123 S. W. 1084, 135 Am. St. 
 Rep. 537, wherein it was held that a 
 contract of employment, authorizing 
 an attorney to recover certain land 
 for the plaintiff, and agreeing to pay 
 him for his "services one half of the 
 land recovered," with nothing said or 
 
 understood as to paying costs, is not 
 champertous although the attorney 
 testified that, knowing plaintiff to 
 be good for the costs, he made the 
 cost bond. See also Grace v. Floyd, 
 (Miss.) 61 So. 694, in which a, con- 
 tract between attorney and client by 
 which, in addition to half of a recov- 
 ery, he was to receive the interest on 
 the judgment and statutory damages 
 on his agreement to pay all costs of 
 an appeal in case the judgment was 
 reversed, was held not contrary to 
 public policy. 
 
 80 Kelerher v. Henderson, 203 Mo. 
 498, 101 S. W. 1083; Shuck v. Pfen- 
 ninghausen, 101 Mo. App. 697, 74 S. 
 W. 381. 
 
 1 Shapley v. Bellows, 4 N. H. 355 ; 
 Christie v. Sawyer, 44 N. H. 298; Jor- 
 dan V. Gillen, 44 N. H. 424; Wallace 
 V. Chicago, M. & St. P. R. Co., 112 
 Iowa 565, 84 N. W. 662; In re Fitz- 
 simmons, 174 N. Y. 15, 66 N. E. 554, 
 reversing 77 App. Div. 345, 12 N. Y. 
 Ann. Cas. 250, 79 N. Y. S. 194; In re 
 Evans, (Utah) 130 Pae. 217; Smits 
 V. Hogan, 35 Wash. 290, 1 Ann. Cas. 
 297, 77 Pae. 390. 
 
672 CHAMPEETT, BAEEATET, AND MAINTENANCE. [§ 390 
 
 honorable members of the profession.* Thus it has been held 
 that it is not against public policy for an attorney to loan his 
 client the money with which to pay the costs of suit, nor to ad- 
 vance the money necessary to carry it on, as needed, when such 
 advances are made as a loan with an express agreement or under- 
 standing for its repayment.^ A contract between attorney and 
 client by which, in addition to half of a recovery, he was to re- 
 ceive the interest on the judgment and statutory damages on his 
 agreement to pay all costs of an appeal in case the judgment was 
 reversed, has been held not contrary to public policy.* 
 
 § 390. Contracts Forbidding Settlement by Client. — 
 
 In several jurisdictions contracts between attorney and client 
 which, in addition to providing for the attorney's compensation, 
 stipulate that the client cannot settle the litigation without the 
 consent of the attorney, have been held to be champertous ^ and 
 voidable at the option of the client.* The reason assigned for this 
 rule is based on the theory that the interest of society in main- 
 taining peace demands the speedy settlement of controversies and 
 advocates the amicable adjustment thereof; and as the desired 
 harmony would not be promoted by denying to a party the right 
 to dismiss a suit or action without the consent of his attorney, an 
 agreement by the terms of which a client attempts to waive such 
 right is violative of public policy, and therefore unenforceable.'' 
 
 2 Eeece v. Kyle, 49 Ohio St. 475, 31 E. 123 ; Emslie v. Ford Plate Glass 
 N. E. 747, 16 L.R.A. 723. Co., 25 Ohio Cir. Ct. Rep. 548 ; Roller 
 
 3 The J. Carl Jackson, 29 Fed. 396; v. Murray, 107 Va. 527, 59 S. E. 421. 
 Christie v. Sawyer, 44 N. H. 298; Compare Ryan v. Martin, 16 Wis. 
 Taylor v. Perkins, (Mo.) 157 S. W. 57. 
 
 122; Potter v. Ajax Min. Co., 22 6 Davy v. Fidelity & Casualty Ins. 
 
 Utah 273, 61 Pac. 999. And see Co., 78 Ohio St. 256, 85 N. E. 504, 
 
 Eeece v. Kyle, 49 Ohio St. 475, 31 N. 125 Am. St. Rep. 694, 17 L.R.A. 
 
 E. 747, 16 L.R.A. 723. (N.S.) 443, following Key v. Vattier, 
 
 4 Grave v. Floyd, (Miss.) 61 So. 694. 1 Ohio 132; Weakly v. Hall, 13 Ohio 
 
 SKauffman v. Phillips, 154 la. 542, 167, 42 Am. Dee. 194; Lewis v. Lewis, 
 
 134 N. W. 575; Newport Rolling Mill 15 Ohio 715; Brown v. Ginn, 66 Ohio 
 
 Co. V. Hall, 147 Ky. 598, 144 S. W. St. 316, 64 N. E. 123. 
 
 760; Key v. Vattier, 1 Ohio 132; '' Jackson r. Stearns, 48 Ore. 25, 84 
 
 Brown v. Ginn, 66 Ohio St. 316, 64 N. Pac. 798, 5 L.R.A. (N.S.) 390. 
 
§§ 391, 392] CHAMPEETY, BAEEATEY, AND MAINTENANCE. 673 
 
 This subject will also be considered in connection with contracts 
 for compensation.' 
 
 § 391. Contracts Entered into after Final Judgment. — 
 
 Contracts for compensation must, in order to be considered cham- 
 pertous, have been entered into prior to the commencement of 
 litigation, or during its pendency. Neither the common law, nor 
 any of the statutes on the subject, seem to have contemplated an 
 agreement made after the rendition of final judgment.^ There is 
 no rule of law or of common fairness between man and man 
 which makes it improper for an attorney to be paid for his labor 
 and skill, in prosecuting a suit to final judgment, from the amount 
 recovered.^" 
 
 § 392. Presentation of Claims against Government. — 
 
 A contract for an attorney's compensation, to be paid out of the 
 recovery on a claim against the government, which he has under- 
 taken to collect, is not champertous.** The reason given for this 
 
 8 See infra, § 435. 
 
 9 Dent V. Arthur, 156 Mo. App. 472, 
 137 S. W. 285; Reece v. Kyle, 49 Ohio 
 St. 475, 31 N. E. 747, 16 L.R.A. 723; 
 Floyd V. Goodwin, 8 Yerg. (Tenn.) 
 484, 29 Am. Dec. 130. See also 
 Walker v. Cuthbert, 10 Ala. 213; 
 Price V. Carney, 75 Ala. 553; Ross v. 
 Chicago, R. I. & P. R. Co., 55 Iowa 
 691, 8 N. W. 644 ; Taylor v. St. Louis 
 Transit Co., 198 Mo. 715, 97 S. W. 
 155. 
 
 So an assignment of an interest in 
 a judgment to the attorney in con- 
 sideration of legal services in procur- 
 ing and sustaining it is not champer- 
 toua. Pittsburg, C. C. & St. L. R. 
 Co. V. Volkert, 58 Ohio St. 362, 50 N. 
 E. 924; Pennsylvania Co. v. Thatcher, 
 78 Ohio St. 175, 85 N. E. 55; Alex- 
 ander V. Munroe, 54 Ore. 500, 101 
 Pac. 903, 103 Pac. 514, 135 Am. St. 
 Rep. 840. And see Com. v. Terry, 11 
 Pa. Super. Ct. 547. 
 
 Attys. at L. Vol. II.— 43. 
 
 10 Pittsburg, C. C. & St. L. R. Co. v. 
 Volkert, 58 Ohio St. 362, 50 N. E. 
 924. 
 
 11 United States.— V. S. Rev. Stat., 
 § 823 (2 Fed. Stat. Annot. 276); 
 Wylie V. Coxe, 15 How. 415, 14 U. S. 
 (L. ed.) 753; Wright v. Tebbitts, 91 
 U. S. 252, 23 U. S. (L. ed.) 320; 
 Stanton v. Embry, 93 U. S. 548, 23 
 U. S. (L. ed.) 983. See also In re 
 Paschal, 10 Wall. 483, 19 U. S. (L. 
 ed.) 992; McPherson v. Cox, 96 U. S. 
 417, 24 U. S. (L. ed.) 751; Bachman 
 V. Lawson, 109 U. S. 659, 3 S. Ct. 479, 
 27 U. S. (L. ed.) 1067; Taylor v. Be- 
 miss, 110 U. S. 42, 3 S. Ct. 441, 28 U. 
 S. (L. ed.) 64; Central, R. etc., Co. v. 
 Pettus, 113 U. S. 110, 5 S. Ct. 387, 28 
 U. S. (L. ed.) 915; Maybin v. Ray- 
 mond, 4 Am. L. T. N. S. 21. 
 
 Indiana. — Coquillard v. Bearss, 2] 
 Ind. 479, 83 Am. Dec. 362. Compare 
 Hart V. State, 120 Ind. 83, 21 N. E. 
 654, 24 N. E. 151. 
 
,674: 
 
 CHAMPEETY, BAREATET, AND MAINTENANCE. [§ 393 
 
 rule is that contracts of this character do not necessitate or en- 
 courage litigation, as, without its consent, the government, cannot 
 be sued.^* 
 
 § 393. Aiding Poor Persons. — The law of champerty and 
 maintenance has never been carried so far in this country as to ren- 
 der objectionable the rendition of legal services, or the giving of as- 
 sistance,, in aid of the litigation of indigent persons.^' Even in 
 England, the defense of charity to a prosecution for maintenance 
 seems to have been recognized at all times.** Indeed, to investi- 
 gate the claims or redress the wrongs of the indigent and the in- 
 jured is no quixotism, but a grave and highly honorable duty of 
 the profession, the performance of which, if not voluntarily as- 
 sumed, may be enforced by the court.** Such aid, however, must 
 be gratuitous, and not coupled with a speculative venture on the 
 outcome of the litigation.*^ In some states statutes relating to 
 
 Kansas. — Jones v. Blacklidge, 9 
 Kan. 562, 12 Am. Rep. 503; McBrat- 
 ney v. Chandler, 22 Kan. 692, 31 Am. 
 Eep. 213. 
 
 Maine. — Manning v. Perkins, 85 
 Me. 172, 26 Atl. 1015. 
 
 Massachusetts. — Manning v. 
 Sprague, 148 Mass. 18, 18 N. E. 673, 
 12 Am. St. Rep. 508, 1 L.R.A. 516. 
 
 New York. — Sedgwick v. Stanton, 
 14 N. Y. 289. 
 
 Pennsylvania. — In re McFarland's 
 Estate, 4 Pa. St. 149 ; Chester County 
 V. Barber, 97 Pa. St. 455. 
 
 12 Manning v. Sprague, 148 Mass. 
 18, 18 N. E. 673, 12 Am. St. Rep. 
 508, 1 L.R.A. 516. 
 
 13 Jahn V. Champagne Lumber Co., 
 157 Fed. 407; Ferine v. Dunn, 3 
 Johns. Ch. (N. Y.) 508; Bristol v. 
 Dann, 12 Wend. (N. Y.) 142, 27 Am. 
 Dee. 122. See also Byrd v. Odem, 9 
 Ala. 755; Quigley v. Thompson, 53 
 Ind. 317; Stotsenburg v. Marks, 79 
 Ind. 193; Gruber v. Baker, 20 Nev. 
 469, 23 Pac. 858, 9 L.E.A. 302 ; Shap- 
 
 ley V. Bellows, 4 N. H. 355; Thall- 
 himer v. Brinckerhoff, 3 Cow. (N. Y.) 
 623, 15 Am. Dec. 308 ; State v. Chitty, 
 
 I Bailey L. (S. C.) 401; Sherley v. 
 Riggs, 11 Humph. (Tenn.) 57; Gra- 
 ham V. McReynolds, 90 Tenn. 703, 18 
 S. W. 272. In re Solicitors, 9 Ont. 
 L. Rep. 708 (gratuitous services by 
 attorney) ; Meloche v. Dgguire, 34 
 Can. Sup. Ct. 24. 
 
 14 Harris v. Brisco, 17 Q. B. D. 
 (Eng.) 504; Holden v. Thompson, 
 [1907] 2 K. B. (Eng.) 489, 11 Ann. 
 Cas. 68. See also Rothewel v. Fewer, 
 Year Book 9 Hen. VI., 64; Fomery 
 V. Abbet of Buckfast, Year Book 21 
 
 Hen. VI., 15; Rex v. , 3 Mod. 
 
 (Eng.) 97; Findon v. Parker, 11 M. & 
 W. (Eng.) 675, 12 L. J. Exeh. 444, 7 
 Jur. 903; Bradlaugh v. Newdegate, 
 
 II Q. B. D. (Eng.) 1; SaviU v. Lang- 
 man, 79 L. T. N. S. (Eng.) 44. 
 
 15 Moore v. Campbell Academy, 9 
 Yerg. (Tenn.) 115. And see supra, 
 §§ 86-88. 
 
 16 In re Evans, 22 Utah 366, 62 
 
§ 394] CHAMPEETY, BAEEATET, AND MAINTENANCE. 
 
 675 
 
 champerty and maintenance expressly except suits of poor per- 
 sons where charitable aid is given." 
 
 § 394. Recovery on Quantum Meruit for Services Ren- 
 dered under Champertous Contract. — Although an attorney 
 and his client may have entered into an agreement, in respect to 
 compensation for the services of the former, which is void for 
 champerty, yet the attorney does not thereby forfeit his right to 
 full compensation for his services, nor the client his right to the 
 fruits of the litigation after paying for such services what they 
 are reasonably worth. In such cases the attorney may recover 
 on a quantum meruit.'* This rule, it has been said, harmonizes 
 with the plainest principles of justice.'® The other party can- 
 not take the benefit of services rendered in his behalf, and escape 
 liability for their reasonable value on the ground that his agree- 
 ment was illegal.^" There cannot, of course, be any recovery 
 under the champertous contract ; ' nor can one recover on a bond, 
 
 Pac. 913, 83 Am. St. Rep. 794, 53 
 L.E.A. 952; Meloehe v. Deguire, 34 
 Can. Sup. Ct. 24. 
 
 17 O'Driscoll V. Doyle, 31 Colo. 193, 
 73 Pac. 27, wherein the court stated, 
 with reference to the Colorado stat- 
 ute then under consideration, that it 
 was copied from the Illinois statute 
 (Rev. Stat., c. 30, § 108); and see 
 Casserleigh v. Wood, 119 Fed. 308, 56 
 C. C. A. 212 ; Casserleigh v. Wood, 14 
 Colo. App. 265, 59 Pac. 1024. 
 
 The Tennessee code exempts from 
 the operation of the champerty and 
 maintenance laws "the exception con- 
 tained in the ancient law." The main- 
 tenance of a suit out of charity and 
 compassion has been declared to be 
 one of these exceptions. See Graham 
 r. McReynolds, 90 Tenn. 703, 18 S. W. 
 272. 
 
 18 United States. — Conn v. Rice, 
 (C. C. A.) 204 Fed. 181. 
 
 Arkansas.— Davia v. Webber, 66 
 
 Ark. 190, 46 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 Illinois. — Brush v. Carbondale, 229 
 111. 144, 11 Ann. Cas. 121, 82 N. E. 
 252. But see Dreyfuss v. Jones, 116 
 111. App. 75. 
 
 Kentucky. — Rust v. Larue, 4 Litt. 
 411, 14 Am. Dec. 172; Caldwell v. 
 Shepherd, 6 T. B. Mon. 389; Bowser 
 V. Patrick, 65 S. W. 824, 23 Ky. L. 
 Rep. 1578. 
 
 Michigan. — See Wildey v. Crane, 69 
 Mich. 17, 36 N. W. 734. 
 
 Wisconsin. — Stearns v. Felker, 28 
 Wis. 594. 
 
 19 Brush V. Carbondale, 229 111. 144, 
 11 Ann. Cas. 121, 82 N. E. 252; 
 Stearns v. Felker, 28 Wis. 594. 
 
 20 Brush V. Carbondale, 229 111. 144, 
 11 Ann. Cas. 121, 82 N. E. 252. 
 
 1 Leonard v. Boyd, 71 S. W. 508, 24 
 Ky. L. Rep. 1320; Mazureau v. Mor- 
 gan, 25 La. Ann. 281. 
 
6Y6 CHAMPEETy, BAEEATEY, AND MAINTENAITOE. [§ 395 
 
 given for a fee due under such a contract,* nor can the compen- 
 sation stipulated for therein be considered in estimating the value 
 of the services actually rendered.* Champertous provisions if 
 clearly severable may be rejected.* In some jurisdictions no re- 
 covery can be had for services rendered under a contract obnoxious 
 for champerty,* though recovery may be had for services rendered 
 prior to such contract.* Thus where an attorney became a party 
 to a scheme by which litigation was illegally instigated, it was 
 held that, even if the illegal contract was subsequently set aside 
 or ignored, the original vice in the scheme still existed; and that 
 the attorney could not purge his conduct and obtain the benefit 
 of such litigation by ignoring the original special contract, and 
 suing on a quantum meruit. Nor could he accomplish that re- 
 sult by attempting to abandon the original contract, and make a 
 new one in furtherance of the unlawful scheme. Nor would it 
 make any difference when he became a party to the scheme.'' The 
 rule that an attorney may, notwithstanding a champertous con- 
 tract as to his compensation, recover the reasonable value of serv- 
 ices lawfully performed, in litigation legitimately instituted, is 
 not applicable in such cases.' 
 
 Purchase of Litigious Rights. 
 
 § 395. Generally. — The purchase of a lawsuit by an attor- 
 ney is the most odious form of champerty.' Thus it has been 
 said that to allow an attorney to purchase a chose in action in 
 
 a Roller V. Murray, 107 Va. 527, 59 6 Thurston v. Percival, 1 Pick. 
 
 S. E. 421. (Mass.) 415. 
 
 8 Holloway v. Lowe, 1 Ala. 246 ; "> Gammons v. Gulbranson, 78 Minn. 
 
 KoUer v. Murray, 107 Va. 527, 59 S. 21, 80 N. W. 779. 
 
 ■E. 421. 8 Gammons v. Johnson, 76 Minn. 76, 
 
 4 Newport Rolling Mill Co. v. Hall, 78 N. W. 1035, distinguishing Gam- 
 
 147 Ky. 598, 144 S. W. 760. mons v. Johnson, 69 Minn. 488, 72 N. 
 
 s Mazureau v. Morgan, 25 La. Ann. W. 563. 
 
 281; Taylors. Perkins, (Mo.) 157 S. » Slade v. Zeitfuss, 77 Conn. 457, 
 
 W. 122; Butler v. Legro, 62 N. H. 59 Atl. 406; Burnham v. Heselton, 82 
 
 350, 13 Am. St. Rep. 573; Roller v. Me. 495, 20 Atl. 80, 9 L.R.A. 90; Ar- 
 
 Murray, 112 Va. 780, Ann Cas. 1913B den v. Patterson, 5 Johns. Ch. (N. 
 
 1088, 72 S. E. 665, 38 L.R.A.(N.S.) Y.) 44. 
 1202. 
 
§ 395] CHAMPEBTY, BAEEATEY, AND MAINTENANCE. 677 
 
 consideration that he will bring suit to collect it, with the right 
 to retain an exorbitant share thereof, would shock the moral sense 
 of all right-minded people.^" The mischief which the law of cham- 
 perty aims to prevent is that of encouraging litigation by persons 
 who have no interest therein independent of that to be derived 
 from carrying it on in whole or in part at their expense ; and that 
 vice certainly exists where an attorney purchases a claim with 
 the intent thereafter to commence suit, or carry on pending liti- 
 gation, at his own expense and for his own benefit, as effectively 
 as where he agrees to carry on litigation at his own expense in 
 the name of another.^^ That one is an attorney at law does not 
 however prevent him from purchasing an alleged tax title from 
 the county, and prosecuting an action to establish title based 
 thereon.'* Though the conveyance of land in actual adverse pos- 
 session *' at private sale '* is void as to the adverse possessor or 
 those in privity with him,'* the express or implied covenants of 
 a deed of land adversely held are available to the grantee, in 
 spite of the rule against champertous conveyances.'® An assign- 
 ment of a claim for collection, with an agreement that the assignee 
 upon making the collection is to pay to the assignor one-half the 
 amount collected, together with a sum previously advanced by the 
 
 lODahms v. Sears, 13 Ore. 47, 11 13 Brown v. White, 153 Ky. 452, 
 
 Pae. 891. 156 S. W. 96. 
 
 H United States. — Gregerson v. Im- The maintenance of a structure 
 
 lay, 4 Blatchf. 503, 10 Fed. Cas. No. over a paasway without aflfecting the 
 
 5,795. surface of the way or the use thereof 
 
 Oregon. — Dahms v. Sears, 13 Ore. is not an ouster of the possession of 
 
 47, 11 Pac. 891. the way or of the space above the 
 
 Pennsylvania. — Dickerson v. Pyle, soil which the structure did not oc- 
 
 4 Phila. 259, 18 Leg. Int. 37. cupy, so as to avoid a conveyance of 
 
 Rhode Island. — Tyler v. Superior the fee as champertous. Goodwin v. 
 
 Ct., 30 E. I. 107, 73 Atl. 467, 23 Bragaw, 87 Conn. 31, 86 Atl. 668. 
 
 Ii.R.A.(N.S.) 1045. 14 Brown v. White, 153 Ky. 452, 156 
 
 Wisconsin. — Miles v. Mutual E. F. S. W. 96. 
 
 L. Assoc, 108 Wis. 421, 84 N. W. 15 Hornsby u. Tucker, (Ala.) 61 So. 
 
 159; Emerson v. McDonnell, 129 Wis. 928. 
 
 67, 107 N. W. 1037. 16 Mackintosh v. Stewart, (Ala.) 
 
 18 Griffith V. Anderson, 22 Idaho 61 So. 956. 
 323, 125 Pac. 218. 
 
678 CHAMPEETT, BAEEATEY, AND MAINTENANCE. [§ 396 
 
 assignor for expense of making the collection, is not, however, con- 
 trary to good morals or public policy." 
 
 § 396. Under Statutes. — In many states there are statutory 
 provisions which aim to prevent attorneys from acquiring litigious 
 rights. Thus the California penal code provides that every at- 
 torney who, either directly or indirectly, buys, or is interested in 
 buying, any evidence of debt or thing in action, with intent to 
 bring suit thereon, is guilty of a misdemeanor.^' So, in Connec- 
 ticut it is provided, in effect, that an attorney who,' with intent 
 to make gain by the fees of collection, purchases and sues upon 
 any choses in action, shall be fined not more than one hundred dol- 
 lars.^' The Louisiana civil code forbids the purchase, under pain 
 of nullity, of litigious rights by attorneys and other officers of 
 court, when they fall under the jurisdiction of the tribunal in which 
 they exercise their functions.^" This nullity is relative, and can be 
 invoked only by the party to the suit against whom the right is to 
 be exercised.^ A Michigan statute provides: "No attorney, so- 
 licitor, or counselor shall, directly or indirectly, buy, or be in any 
 manner interested in buying, any bond, promissory note, bill of 
 exchange, book debt, or other thing in action, with the intent and 
 for the purpose of bringing any suit thereon." ^ In South Caro- 
 ls Merchants' Protective Ass'n v. The statute applies to purchases 
 Jacobsen, 22 Idaho 636, 127 Pac. 315. made by attorneys who reside in a 
 
 18 Cal. Penal Code § 161. See also different parish or district from that 
 Bulkeley ;;. State Bank, 68 Cal. 80, 8 in which sits the court wherein tlie 
 Pac. 643; Gage v. Downey, (Cal.) 19 suit originated; and the fact that the 
 Pac. 113. attorney has never practiced in that 
 
 19 Conn. Gen. Stat. § 1351. See also particular court will not shield him. 
 Slade V. Zeitfuss, 77 Conn. 457, 59 Denny v. Anderson, 36 La. Ann. 762. 
 Atl. 406. iNew Orleans Gas Co. v. Webb, 7 
 
 20 Louisiana. — La. Civ. Code, Art. La. Ann. 164 ; Saint v. Martel, 122 
 2447. See also Copley v. Lambeth, 1 La. 93, 47 So. 413. 
 
 La. Ann. 316; Copley u. Moody, 2 La. 2 Randall v. Baird, 66 Mich. 312, 
 
 Ann. 497 ; Consol. Assoc, v. Comeau, 33 N. W. 506 ; Smedley v. Dregge, 101 
 
 3 La. Ann. 552; Watterston v. Webb, Mich. 200, 59 N.. W. 411. 
 
 4 La. Ann. 173; Mullen v. Amas, 7 The statute does not prevent an at- 
 La. Ann. 71; New Orleans Gaslight torney from buying a chattel of one 
 Co. V. Webb, 7 La. Ann. 164; Buck v. person, and then suing another in 
 Blair, 36 La. Ann. 16; Saint v. Mar- replevin to get possession of it. 
 tel, 122 La. 93, 47 So. 413. Town v. Tabor, 34 Mich. 262. 
 
§ 396] CHAMPERTY, BAEEATEY, AND MAINTENANCE; 679 
 
 lina it is provided, in substance, that an attorney who shall buy 
 any demand for the purpose of putting it in suit, when the owner 
 would not sue the same, shall pay a fine of one hundred dollars, 
 and be incapable of practicing in any court until restored by the 
 Supreme Court.* Under the provisions of the revised codes of 
 Idaho, an attorney at law is prohibited and forbidden, either di- 
 rectly or indirectly, buying any evidence of debt or thing in action 
 with intent of bringing suit thereon, and for a violation of this 
 statute the attorney is held guilty of a misdemeanor.* Statutes of 
 this character are not offended against by the mere nominal trans- 
 fer of a claim for the purpose of facilitating the collection thereof, 
 or to avoid expense and a multiplicity of suits,° nor by an agree- 
 ment for a contingent fee,^ or guaranteeing the collection of a 
 claim.'' It is recognized in many jurisdictions that an attorney 
 may be a bona fide purchaser of choses in action and, as such, 
 entitled to the aid of the courts in enforcing the claims so ac- 
 quired.' Thus it has been held that the purchase by an attorney 
 of a good and valid title to land in controversy, in a suit between 
 his client and another, from persons not parties to the litigation, 
 is not an objectionable purchase of litigious rights,^ though such a 
 purchase must come within the rules, heretofore stated, with 
 reference to dealings between attorney and client, and the acquisi- 
 tion of adverse interests.^" So the purchase of a final judgment 
 has been held not to be the purchase of a litigious right; '' 
 but it is otherwise as to the purchase of a judgment from which 
 
 SS. C. Rev. Stat. (1893) 2293. 7 Gregory v. Gleed, 33 Vt. 405. 
 
 See also Cooke v. Poole, 25 S. C. 593. 8 Philbrook v. Superior Court, 111 
 
 4 Rev. Codes, § 6524. Merchants' Cal. 31, 43 Pac. 402; Missouri, etc.. 
 
 Protective Ass'n v. Jacobsen, 22 R. Co. v. Bacon, (Tex.) 80 S. W. 
 
 Idaho 636, 127 Pac. 315. 572. 
 
 BTuller V. Arnold, 98 Cal. 522, 33 9 Evans v. Wilkinson, 6 Rob. (La.) 
 
 Pac. 445; Herbstreit v. Beckwith, 35 172. 
 
 Mich. 95; Smedley v. Dregge, 101 10 See supra, § 167. And see gen- 
 Mich. 200, 59 N. W. 411; Wightman erally, supra, §§ 152-173. 
 V. Catlin, 113 App. Div. 24, 37 Civ. n Rogers v. Hendrick, 85 Conn. 260, 
 Proc. 105, 98 N. Y. S. 1071. 82 Atl. 586 ; Denton v. Willcox, 2 La. 
 
 8 Landry's Succession, 116 La. 970, Ann. 60. See also Cooke v. Poole, 25 
 
 41 So. 226; Weeks v. Gattell, 125 S. C. 593. 
 App. Div. 402, 109 N. Y. S. 977. See 
 also supra, § 386. 
 
680 CHAMPEETT, BAEKATEY, AND MAINTENANCE. [§ 397 
 
 an appeal is pending.'* Good faith is no defense where the statu- 
 tory provisions have been violated ; '* nor does the assignment of 
 a non-negotiable chose in action, for the mere purpose of giving 
 effect to an agreement which is contrary to public policy, make the 
 assignee an equitable and bona fide owner of the chose assigned, 
 so that he can bring an action upon it in his own name.'* Vio- 
 lations of the statutes under consideration must be proved; they 
 will not be presumed.'* 
 
 § 397. In New York. — The New York penal law provides 
 that an attorney or counselor shall not: 
 
 (1) "Directly or indirectly buy, or be in any manner inter- 
 ested in buying, a bond, promissory note, bill of exchange, book 
 debt, or other thing in action, with the intent and for the pur- 
 pose of bringing an action thereon. 
 
 (2) "By himself, or by or in the name of another person, either 
 before or after action brought, promise or give, or procure to be 
 promised or given, a valuable consideration to any person, as an 
 inducement to placing, or in consideration of having placed, in 
 his hands, or in the hands of another person, a demand of any 
 kind, for the purpose of bringing an action thereon, or of repre- 
 senting the claimant in the pursuit of any civil remedy for the 
 recovery thereof. But this subdivision does not apply to an agree- 
 ment between attorneys and counselors, or either, to divide be- 
 tween themselves the compensation to be received. 
 
 (3) "An attorney or counselor convicted of a violation of any 
 of the provisions of this section, in addition to the punishment 
 by fine and imprisonment prescribed therefor by this section, for- 
 feits his office. 
 
 (4) "An attorney or counselor, who violates either of the first 
 two subdivisions of this section, is guilty of a misdemeanor ; and, 
 on conviction thereof, shall be punished accordingly, and must be 
 removed from office by the supreme court." '^ 
 
 12 Mullen V. Amas, 7 La. Ann. 71. is Bulkeley v. State Bank, 68 Cal. 
 
 ISWatterston v. Webb, 4 La. Ann. 80, 8 Pac. 643. 
 
 173; Buck V. Blair, 36 La. Ann. 16. 16 N. Y. Pen. Law § 274; N. Y. 
 
 i4Slade V. Zeitfuss, 77 Conn. 457, Code Civ. Pro. §§ 73-75. See also. 
 
 59 Atl. 406. Baldwin v. Latson, 2 Barb. Ch. 306;. 
 
§ 397] CHAMPEETY, BAEEATEY, AND MAINTENANOE. 
 
 681 
 
 These are the only statutory provisions relating to champerty 
 or maintenance now in force in this state,^" although laws of a 
 similar nature were in force theretofore/' and the common-law 
 doctrine does not exist except as preserved by the statutes.^* 
 
 The statute applies only to attorneys ; ^^ the purpose being to 
 prevent them from encouraging, instigating or promoting ill-feel- 
 ing and strife, and thereby securing the ownership or control of 
 litigious rights for the purpose of bringing an action thereon ; ^ 
 and, being penal, the statute will not be extended by construction.* 
 
 In order to come within the language of the statute, the at- 
 torney must purchase some thing in action ' for the purpose of 
 bringing suit thereon.* The intent to bring suit must not be 
 
 People V. Walbridge, 3 Wend. 120; 
 Coughlin V. New York Cent., etc., R. 
 Co., 71 N. Y. 443, 27 Am. Rep. 75; 
 Oisher v. Lazzarone, 61 Hun 623 
 mem., 15 N. Y. S. 933; Maxon v. 
 Cain, 22 App. Div. 270, 47 N. Y. S. 
 855; Carpenter v. Cummings, 20 
 Misc. 661, 46 N. Y. S. 252; McCoy v. 
 Gas Engine & Power Co., 71 Misc. 
 537, 129 N. Y. S. 251; Sugarman v. 
 Mandolla, 88 N. Y. S. 393. 
 
 17 Browne v. West, 9 App. Div. 135, 
 41 N. Y. S. 146. 
 
 18 Mann v. Fairchild, 3 Abb. App. 
 Dee. 152, 2 Keyes 106, affirming 5 
 Barb. 108, 14 Barb. 548; Baldwin v. 
 Latson, 2 Barb. Ch. 306; Williams v. 
 Matthews, 3 Cow. 252 ; Berrien v. Mc- 
 Lane, Hoffm. 421; Arden v. Patter- 
 son, 5 Johns. Ch. 44; Fogerty v. Jor- 
 dan, 2 Robt. 319; Hall v. Gird, 7 Hill 
 586. 
 
 19 Clark V. Grosh, 81 Misc. 407, 142 
 N. Y. S. 966. 
 
 «<> Irwin V. Uurrie, 171 N. Y. 409, 
 64 N. E. 161, 58 L.R.A. 830, reversing 
 56 App. Div. 514, 67 N. Y. S. 380; 
 Browne v. West, 9 App. Div. 135, 41 
 N. Y. S. 146; Thompson v. Stiles, 44 
 Misc. 334, 89 N. Y. S. 876. 
 
 1 Ransom v. Cutting, 188 N. Y. 447, 
 81 N. E. 324, affirming 112 App. Div. 
 150, 98 N. Y. S. 282; Wightman v. 
 Catlin, 113 App. Div. 24, 37 Civ. 
 Proc. 105, 98 N. Y. S. 1071. 
 
 2 Tilden v. Aitkin, 37 App. Div. 28, 
 29 Civ. Proc. 28, 55 N. Y. S. 735. See 
 also Ramsey v. Gould, 57 Barb. 398, 
 39 How. Pr. 62; Van Rensselaer v. 
 Onandaga County Sheriff, 1 Cow. 443 ; 
 Burling v. King, 46 How. Pr. 452. 
 
 3 Van Dewater v. Gear, 21 App. 
 Div. 201, 47 N. Y. S. 503; Blashfield 
 V. Empire State Tel., etc., Co., 18 N. 
 Y. S. 250. 
 
 4 Watson V. McLaren, 19 Wend. 
 557; Hall v. Bartlett, 9 Barb. 297; 
 Fay V. Hebbard, 42 Hun 490, 4 N. Y. 
 St. Rep. 485; Wightman v. Catlin, 
 113 App. Div. 24, 37 Civ. Pro. 105, 
 98 N. Y. S. 1071 ; Oldmixon v. Sever- 
 ance, 119 App. Div. 821, 104 N. Y. S. 
 1042; De Forest v. Andrews, 27 Misc. 
 145, 29 Civ. Pro. 250, 58 N. Y. S. 
 358; Gilroy v. Badger, 27 Misc. 640, 
 58 N. Y. S. 392; West v. Kurtz, 15 
 Daly 99, 15 Civ. Proc. 424, 3 N. Y. 
 S. 14, 2 N. Y. S. 110. 
 
682 CHAMPEETY, BAiEEATEY, AND MAINTENANCE. [§ 397 
 
 merely incidental and contingent; it should rather appear to be 
 the primary purpose of the purchase.* 
 
 The "things in action" intended by the statute are those on 
 which a suit can be brought,* such as pre-existing securities or 
 demands; the term buying and purchasing being, in strictness, 
 applicable only to such.' But it is immaterial whether the claim 
 is to be enforced by a suit in equity or by an action at law,' or 
 whether the transfer be taken in the name of the attorney or that 
 of another person for him.* 
 
 The code also prohibits attorneys from giving, either to the 
 client or to any other person, any valuable consideration as an 
 inducement to placing claims in his hands, or in the hands of an- 
 other, for the purpose of bringing an action thereon.^" 
 
 It has been held that where it is set up in defense that the 
 demand on which an action is founded was bought by an attorney 
 or cotmselor at law contrary to the statute, the question presented 
 is one for the determination of the court ; ^' but it is evident that 
 a conflict of evidence may be presented which will warrant the 
 submission of the question to the jury.^* 
 
 The statute does not apply to the purchase of land,** chattels,** 
 corporate stock,*' or judgments,** even though they are purchased 
 
 5 Moses V. McDivitt, 88 N. Y. 62 ; of his client, induces him to assign 
 West V. Kurtz, 15 Civ. Proc. 424, 15 the claim to a third person, a neigh- 
 Daly 99, 3 N. Y. S. 14. bor of the attorney and having oiEces 
 
 6 Ramsey v. Erie R. Co., 8 Abb. Pr. with him, does not show a violation 
 N. S. 174; Hirshbach v. Ketchum, 5 of the statute, or that the attorney 
 App. Div. 324, 39 N. Y. S. 291. had any personal interest in the claim. 
 
 f Chenango Bank v. Hyde, 4 Cow. Wightman v. Catlin, 113 App. Div. 
 567. 24, 37 Civ. Proc. 105, 98 N. Y. S. 
 
 8 Baldwin v. Latson, 2 Barb. Ch. 1071. 
 
 306 ; Mann v. Fairchild, 14 Barb. 548 ; n Orcutt v. Pettit, 4 Denio 233. 
 
 Brotherson v. Consalus, 26 How. Pr. 12 See Gescheidt v. Quirk, 66 How. 
 
 213. Pr. 272, 5 Civ. Proc. 38. 
 
 9 Browning v. Marvin, 100 N. Y. 13 Townsend v. Fromer, 15 Civ. 
 144, 2 N. E. 635. Proc. 8, 2 N. Y. S. 703. 
 
 10 In re Clark, 184 N. Y. 222, 7L; N'. UVan Dewater v. Gear, 21 App. 
 E. 1, affirming 108 App. Div. 150, Div. 201, 47 N. Y. S. 503. 
 
 95 N. Y. S. 388; Hess v. Allen, 24 IB Ramsey t'. Gould, 57 Barb. 398, 
 
 Misc. 393, 53 N. Y. S. 413. 39 How. Pr. 62; Ramsey v. Erie R. 
 
 The mere fact that the attorney, Co., 8 Abb. Pr. N. S. 174. 
 
 in order to prosecute a just claim 16 Van Rensselaer v. Onondaga 
 
§ 397] OHAMPEETY, BABEATEY, AND MAINTENANCE. 
 
 G83 
 
 for the purpose of issuing execution thereon and collecting the 
 debt ; " nor does it apply to agreements concerning pending suits/' 
 or for contingent fees ; '' and the statute expressly excepts agree- 
 ments between attorneys and counselors, or either, to divide be- 
 tween themselves the compensation to be received.^" Nor has the 
 statute any application where the purchase was made, not to 
 bring suit on the thing purchased, but for the purpose of protect- 
 ing substantial rights of the attorney,^ or to compel other persons 
 to do a particular thing,^ such, for instance, as to compel the 
 assignment of corporate stock.' So, it has been held that the lan- 
 guage of the statute does not apply to the purchase of claims for 
 the purpose of enforcing them by special proceedings, as, for 
 instance, in the surrogate's court ; * or in a court not of record,* 
 or in another state.* 
 
 County Sheriff, 1 Cow. 443. See also 
 Zogbaum v. Parker, 66 Barb. 341, af- 
 firmed 55 N. Y. 120. 
 
 IT Warner v. Paine, 3 Barb. Ch. 
 630; Brotherson v. Consalus, 26 How. 
 Pr. 213. 
 
 18 Wetmore v. Hegeman, 88 N. Y. 
 69. 
 
 19 In re Fitzsimona, 174 N. Y. 15, 
 66 N. E. 554, reversing 77 App. Div. 
 345, 12 N. Y. Ann. Cas. 250, 79 N. Y. 
 S. 194; Weeks v. Gattell, 125 App. 
 Div. 403, 109 N. Y. S. 977. 
 
 Where a disinherited son volunta- 
 rily entered into a written agreement 
 retaining attorneys to oppose the pro- 
 bate of his father's will or to effect a 
 settlement, agreeing to pay them spe- 
 cified percentages in either case, the , 
 mere fact that the agreement pro- 
 vided that the attorneys should not 
 call upon him "for any sum or sums 
 of money to pay the necessary dis- 
 bursements required in the said pro- 
 ceedings,'' does not render it cham- 
 pertous. Ransom v. Cutting, 188 N. 
 Y. 447, 81 N". E. 324, affirming 112 
 App. Div. 150, 98 N. Y. S. 282. 
 
 20 Hirshbach v. Ketchum, 5 App. 
 Div. 324, 39 N. Y. S. 291. 
 
 1 Van Rensselaer v. Onondaga Coun- 
 ty Sheriff, 1 Cow. 443; Baldwin v. 
 Latson, 2 Barb. Ch. 306. 
 
 2 Wightman v. Catlin, 113 App. 
 Div. 24, 37 Civ. Proc. 105, 98 N. Y. 
 S. 1071. 
 
 3 Moses V. McDivitt, 88 N. Y. 82. 
 
 i Tilden v. Aitkin, 37 App. Div. 28, 
 29 Civ. Proc. 28, 55 N. Y. S. 735, 
 wherein it was said: "It will be 
 observed that the words 'an action,' 
 in section 73 (supra), were substi- 
 tuted in the place of 'any suit' in 
 the former statute. (2 R. S. 288, 
 § 70.) The word 'suit' is a more 
 comprehensive word than 'action,' 
 and might include a special proceed- 
 ing. (See Century Dictionary.) The 
 change of the statute in the Code of 
 Civil Procedure, by substituting the 
 word 'action' for 'suit,' indicates 
 a legislative intent to limit the pro- 
 hibition to cases where attorneys 
 shall purchase demands with intent 
 to commence 'actions' — ^as defined by 
 the same statute — thereon.'' 
 
 s Goodell V. People, 5 Park. Grim. 
 20G. 
 
 6 Roe V. Jerome, 18 Conn. 138. 
 
684 CHAMPEETY, BAKEATEY, AND MAINTENANCE. [§ 398 
 
 l^or does the statute "prohibit the receipt, by an attorney or 
 counselor, of a bond, promissory note, bill of exchange, book debt, 
 or other thing in action, in payment for property sold, or for serv- 
 ices actually rendered, or for a debt antecedently contracted; or 
 from buying or receiving a bill of exchange, draft, or other thing 
 in action for the purpose of remittance, and without intent to 
 violate" the law.' 
 
 While an attorney who buys a chose in action for the purpose 
 of bringing any suit thereon cannot himself enforce the same, he 
 acquires a good title which he may transfer to another either by 
 gift or for value, and his donee or assignee may enforce such 
 chose in action for his own benefit, although he was cognizant of 
 the unlawful purpose with which the attorney purchased it. Of 
 course, if it appears that the action brought by the attorney's 
 donee or assignee is brought in the interest of the attorney, the 
 court may refuse relief ; but the presumption, in such case, is that 
 the action is brought solely in the interest of the donee or as- 
 signee.' It is immaterial that such transferee is the wife of the 
 attorney.^ So, the attorney may retransfer the thing purchased to 
 his vendor.^" 
 
 Champertous Agreement as Defense to Action. 
 
 § 398. General Rule. — The general rule is that champerty 
 can only be set up in defense of an action which has been 
 brought on a contract which is tainted therewith; and that the 
 existence of a champertous agreement, under which an attor- 
 ney is to receive compensation, is no defense to an action 
 brought by the attorney for his client, ^^ either at law or in 
 
 7N. Y. Penal Law, § 275; N. Y. Co., 40 App. Div. 215, 57 N. Y. S. 
 
 Code Civ. Pro. § 76. See also Ep- 1103. 
 
 stein V. U. S. Fidelity, etc., Co., 29 ^l England. — Hilton v. Woods, L. 
 
 Misc. 295, 60 N. Y. S. 527, reversing R. 4 Eq. 432; Elborough v. Ayres, L. 
 
 28 Misc. 440, 58 N. Y. S. 1135; Lie- R. 10 Eq. 367. 
 
 berman v. Mandel, 98 N. Y. S. 201. United States. — Burnes v. Scott, 
 
 8 Beers v. Washbond, 86 App. Div. 117 U. S. 582, 6 S. Ct. 865, 29 U. S. 
 582, 83 N. Y. S. 993. (L. ed.) 991; Courtriglit v. Burnes, 
 
 9 Beers v. Washbond, 86 App. Div. 13 Fed. 317 ; Globe V7orks v. U. S., 45 
 582, 83 N. Y. S. 993. Ot. CI. 497. 
 
 10 Cretan v. Foote & Thome Glass Alabama. — Ware v. Russell, 70 Ala. 
 
§ 398] CHAMPEETY, BAEEATEY, AND MAINTENANCE. 
 
 685 
 
 equity ; ^ nor can such fact be pleaded in abatement." While it is 
 
 174, 45 Am. Rep. 82; Sibley v. Alba, 
 95 Ala. 198, 10 So. 831. 
 
 Arkansas. — Missouri Pac. E. Co. v. 
 Smith, 60 Ark. 221, 29 S. W. 752. 
 
 Georgia. — Reed v. Janes, 84 Ga. 
 380, 11 S. E. 401. 
 
 Illinois. — Torrence v. Shedd, 112 
 111. 466; Gage v. Du Puy, 137 111. 652, 
 24 N. E. 541, 26 N. E. 386 ; Burton v. 
 Perry, 146 111. 71, 34 N. E. 60; Hen- 
 derson V. Kibbie, 211 111. 556, 71 N. E. 
 1091; Elser v. Gross Point, 223 111. 
 230, 79 N. E. 27, 114 Am. St. Rep. 
 326. 
 
 Iowa. — ^Knadler v. Sharp, 36 Iowa 
 232; Small v. Chicago, etc., R. Co., 
 55 Iowa 582, 8 N. W. 437 ; Vimont v. 
 Chicago, etc., R. Co., 69 Iowa 296, 22 
 N. W. 906, 28 3Sr. W. 612; Galusha v. 
 Wendt, 114 Iowa 597, 87 N. W. 512; 
 Lacey v. Davis, 98 N. W. 366. Com- 
 pare Allison V. Chicago & N. W. R. 
 Co., 42 Iowa 274. 
 
 Kansas. — Forbes v. Mohr, 69 Kan. 
 342, 76 Pac. 827. 
 
 Kentucky. — ^Caldwell v. Shepherd, 
 6 T. B. Mon. 389; Wehmhoff v. 
 Rutherford, 98 Ky. 91, 32 S. W. 288. 
 
 Michigan. — Foley v. Grand Rapids 
 & I. E. Co., 157 Mich. 67, 121 N. W. 
 257, 16 Detroit Leg. N. 246. 
 
 Minnesota. — Isherwood v. H. L. 
 Jenkins Lumber Co., 87 Minn. 389, 92 
 N. W. 230. 
 
 Missouri. — Bent v. Priest, 86 Mo. 
 475; Pilce v. Martindale, 91 Mo. 268, 
 1 S. W. 858; Euneau v. Rieger, 105 
 Mo. 659, 16 S. W. 854; Million v. 
 Ohnsorg, 10 Mo. App. 432; Bent v. 
 Lewis, 15 Mo. App. 40; Bick v. Over- 
 felt, 88 Mo. App. 140. But see Keler- 
 her V. Henderson, 203 Mo. 516, 101 
 S. W. 1083, wherein it was suggested 
 that the decision in Bick v. Overfelt, 
 
 supra, might have carried the rule a 
 little too far. 
 
 Nebraska. — Chamberlain v. Grimes, 
 
 42 Neb. 701, 60 N. W. 948. 
 
 New Hampshire. — Taylor v. Gil- 
 man, 58 N. H. 417; Connecticut River 
 Mut. F. Ins. Co. V. Way, 62 N. H. 
 622. 
 
 New York. — Story v. Satterlee, 13 
 Daly 169; Hall v. Gird, 7 Hill 586. 
 
 North Dakota. — Woods v. Walsh, 7 
 N. D. 376, 75 N. W. 767. 
 
 Ohio. — Pennsylvania Co. v. Lom- 
 bardo, 49 Ohio St. 1, 29 N. E. 573, 14 
 L.R.A. 785. 
 
 Rhode Island. — Hearn v. Hearn, 24 
 E. I. 328, 53 Atl. 95. 
 
 Tennessee. — Robertson v. Cayard, 
 
 111 Tenn. 356, 77 S. W. 1056, over- 
 ruling Webb V. Armstrong, 5 Humph. 
 381. These cases render obsolete de- 
 cisions, under an earlier statute, in the 
 following cases : Vincent v. Ashley, 5 
 Humph. 593; Weedon v. Wallace, 
 Meigs 286; Dowell v. Dowell, 3 Head 
 502; Hunt V. Lyle, 8 Yerg. 142. 
 
 Utah. — Potter v. Ajax Min. Co., 22 
 Utah 273, 61 Pac. 999. 
 
 Virginia. — Roller v. Murray, 107 
 Va. 527, 59 S. E. 421. 
 
 Washington. — Straw-Ellsworth Mfg. 
 Co. V. Cain, 20 Wash. 351, 55 Pac. 
 321. 
 
 West Virginia. — Davis v. Settle, 
 
 43 W. Va. 17, 26 S. E. 557. 
 
 12 Hall V. Gird, 7 Hill (N. Y.) 586. 
 See also Ross v. Chicago, R. I. & P. R. 
 Co., 55 Iowa 691, 8 N. W. 644. 
 
 13 Missouri Pac. R. Co. v. Smith, 60 
 Ark. 221, 29 S. W. 752; Ellis v. Smith, 
 
 112 Ga. 480, 37 S. E. 739; Allison v. 
 Chicago, & N. W. E. Co., 42 Iowa 
 274. 
 
686 CHAMPEETY, BAEEATEY, AND MAINTENANCE. [§ 399 
 
 true that the right of litigation may be abused, and that proper 
 remedies for groundless and vexatious litigation must exist, these 
 remedies should be such as not to impair the free use of the right 
 itself; and as the justice or injustice of a cause cannot well be 
 known before its termination, the checks upon unjust litigation 
 must in general consist, not in excluding the suit or the suitor from 
 the courts, but in redress following the decision of the cause upon 
 the merits." The defendant in the client's action is not a party to 
 the champerty; he is not interested in it, nor in anywise injured by 
 it. If his suit is founded upon a good cause of action there is no 
 sound reason for holding that he may be released by showing that 
 the plaintiff has made a void and unlawful agreement with his 
 attorney concerning the fee and expenses of the suit.^* It is time 
 enough to turn a party out of court when he asks its aid to enforce 
 the objectionable contract.^* It has been held, however, that should 
 a creditor transfer his cause of action to an attorney or other person 
 under an agreement that the suit should be prosecuted in the name 
 of the attorney or such other person, and for thus prosecuting the 
 . suit the attorney or such other person was to have a part thereof, 
 then it would be available as a defense, because it would be an 
 action the direct effect of which would be the enforcement of the 
 champertous agreement.^" Champerty as a defense in actions 
 brought by the attorney for compensation will be considered in 
 that connection.^* 
 
 § 399. Rule in Wisconsin. — The foregoing general rule 
 does not prevail in Wisconsin. In that state the rule is that if it 
 is proved on the trial of an action that an attorney is prosecuting 
 the cause in pursuance of a champertous agreement with his client, 
 the action should be dismissed on motion of the defendant;^' so, 
 it has been held that when a trial court is informed that an action 
 
 14 Burnes v. Scott, 117 U. S. 582, 6 v. Martindale, 91 Mo. 268, 1 S. W. 
 S. Ct. 865, 29 a. S. (L. ed.) 991; 858. 
 
 Thallhimer v. Brinckerhoff, 3 Cow. 17 Wehmhoff v. Rutherford, 98 Ky. 
 
 (N. Y.) 623, 15 Am. Dec. 308; Robert- 91, 32 S. W. 288. 
 
 son V. Cayard, 111 Tenn. 356, 77 S. W. 18 See infra, % 421 et seq. 
 
 1056. 19 Barker v. Barker, 14 Wis. 131; 
 
 15 Courtriglit u. Burns, 13 Fed. 317. Allard v. Lamirande, 29 Wis. 502; 
 
 16 Bent V. Priest, 86 Mo. 475; Pike Kelly v. Kelly, 86 Wis. 170, 56 N. W. 
 
§ 399] CHAMPEETY, BAEEATEY, AND MAINTENANCE. 687 
 
 peiiding before it is tainted with champerty, it is its duty to refuse 
 to proceed therein, and to dismiss the action.*" Nov can an at- 
 torney, prosecuting an action under a champertous agreement in 
 his client's absence, cancel such agreement and proceed with the 
 action, even though he has a letter of attorney authorizing him 
 to sue and do all things necessary in that behalf.^ Champerty 
 in a suit may be taken advantage of without being pleaded, and 
 without an issue being formed in regard thereto, as it affects the 
 right of the champertor to use the court, regardless of the merits 
 of his claim; nor can champerty be waived by a party, or stipu- 
 lated out of the case.* The taint of champerty, however, does 
 not affect the merits of the case, but only the right of the cham- 
 pertor to use the court.' The burden of showing whether there 
 is champerty or maintenance in the prosecution of an action is 
 upon the defendant ; * any conflict of evidence with relation there- 
 to being for the jury.* 
 
 637. See also Miller v. Larson, 19 2 Miles v. Mutual Eeserve Fund L. 
 
 Wis. 463; Martin v. Veeder, 20 Wis. Assoc, 108 Wis. 421, 84 N. W. 159; 
 
 466; Stearns v. Felker, 28 Wis. 594; Decker v. Becker, 143 Wis. 542, 128 
 
 Miles V. Mutual Reserve Fund Life N. W. 67. 
 
 Assoc, 108 Wis. 421, 84 N. W. 159; 3 Miles v. Mutual Eeserve Fund L. 
 
 Emerson v. McDonald, 129 Wis. 67, Assoc, 108 Wis. 421, 84 N. W. 159. . 
 
 107 N. W. 1037. 4 Andrews v. Thayer, 30 Wis. 228. 
 
 20 Decker o. Becker, 143 Wis. 542, 5 Decker v. Becker, 143 Wis. 542, 
 
 128 N. W. 67. 128 N. W. 67. 
 
 1 Kelly V. Kelly, 86 Wis. 170, 56 N. 
 W. 637. 
 
CHAPTER XIX. 
 
 EIGHT TO COMPENSATION. 
 
 In General. 
 
 § 400. Under the Civil Law. 
 
 401. Rule in England. 
 
 402. Criticism of English Rule. 
 
 403. Rule in Canada. 
 
 404. General Rule in United States. 
 
 405. Rule in New Jersey. 
 
 406. Retaining Fees. 
 
 For Services of Associate Counsel, 
 
 407. Unauthorized Employment. 
 
 408. Ratification of Unauthorized Employment. 
 
 409. Authorized Employment. 
 
 for Services Rendered in Aid of Indigent Persons. 
 
 410. Common Law Rule in Criminal Cases. 
 
 411. Statutes Providing for Compensation in Criminal Cases. 
 
 412. In Civil Actions. 
 
 For Services Rendered to Persons under Disability, or Acting in 
 Representative Ca/paeity. 
 
 413. Infants. . 
 
 414. Married Women. 
 
 415. Insane Persons. 
 
 416. Persons Acting in Representative Capacity. 
 
 In General. 
 
 § 400. Under the Civil Law. — Under the ancient Eoman 
 or civil law advocates were not allowed to contract with their 
 clients for compensation.* Throughout the whole growth of the 
 
 1 Cod. lib. 2, tit. 6, 1, 6, s. 2. See "The relation of patron and client 
 
 also Livingston v. Cornell, 2 Mart. in republican Rome is too well known 
 0. S. (La.) 281. to require comment. The client re- 
 
 688 
 
400] 
 
 EIGHT TO COMPENSATION. 
 
 689 
 
 civil law, from the foundation of Eome to the digest of Justinian, 
 not only was the advocate always under incapacity to make any 
 contract for his remuneration, but also, throughout a part of that 
 time, he was imder prohibition from receiving any gain for his 
 services. Whether the name be donum, or merces, or honorarium, 
 is immaterial, the substance of the law was invariable; he never 
 could contract for merces, though during part of the time he might 
 lawfully accept a donum? In an early case ' Chancellor Walworth 
 reviews the status of the advocate under the civil law as follows : 
 "Among the early institutions of Eome, when the relation of 
 patron and client existed between the patrician and the plebeian, 
 the patron, who had accepted the promise of fidelity from the 
 client, was bound to render him advice and assistance, and to 
 
 ceived a, sort of paternal protection 
 from his patron, who assisted him ( if 
 necessary ) , by pleading in the forum, 
 and by expounding the law. In return 
 for this, the client was bound to per- 
 form sundry duties to his patron, 
 somewhat in the nature of feudal serv- 
 ices, as, for example, to contribute to 
 pay his fines, or for his ransom, or 
 the portioning of his daughter. Thus, 
 though the patron received no direct 
 reward for what he did for his clients, 
 he was indirectly recompensed by the 
 increase of his political influence. 
 Afterwards there sprang up », class of 
 persons who devoted themselves to 
 legal studies, and who took fees for 
 legal advice. This was forbidden by 
 the Lex Cincia, passed B. C. 204, 
 which forbade all payments for legal 
 assistance. The Lex Cincia, having 
 fallen into neglect, was revived by 
 Augustus, A. U. C. 732. This was 
 again evaded. The subject was then 
 brought before the Emperor Claudius, 
 who passed a, law limiting the advo- 
 cate's fee to 10,000 sesterces (about 
 £80). By an order of Trajan, the 
 fee was not to be paid until the work 
 Attys. at L. Vol. II.— 44. 
 
 was done, as we learn from Pliny's 
 Epistle v. 21, — 'peractis negotiis per- 
 mitteiatur pecuniam duntaxat decern 
 millium dare.' The fee, at a later 
 period called honorarium, did not for 
 certain technical reasons form the 
 subject of what the Romans called 
 lactio, but was recoverable by the 
 exiraordinatia cognitio before the 
 magistrate or praeses of the province. 
 Sandar's Institutes, p. 475." Ken- 
 nedy V. Broun, 13 C. B. N. S. 677, 696, 
 106 E. C. L. 677, 696, wherein the 
 earlier cases are exhaustively re- 
 viewed. 
 
 2 Kennedy v. Broun, 13 C. B. N. S. 
 677, 106 E. C. L. 677, reviewing the 
 earlier authorities. 
 
 Honoraire is what is given to those, 
 the honor of whose profession does 
 not allow them to receive a salary, as 
 advocates and physicians. It is called 
 honoraire because it is honest to re- 
 ceive it, but shameful to demand it. 
 It cannot be fixed by any convention ; 
 nor can it be sued for. Livingston v. 
 Cornell, 2 Mart. 0. S. (La.) 281. 
 
 8 Adams v. Stevens, 26 Wend. (N. 
 Y.) 451. 
 
690 EIGHT TO COMPENSATION. [§ 400 
 
 sustain him in his litigations without any other fee or reward 
 than that which the client was bound to render him at all times, in 
 virtue of his general relation of client. The relation which 
 existed between them was similar to that of parent and child, or 
 rather that of master and slave. But in the progress of society, 
 when the relation of patron and client towards each other had 
 totally changed, when the business of advocating causes in the 
 courts had become a profession, and before the credit system per- 
 vaded all the relations of life, the client paid his advocate a fee 
 in advance for his services, which was called a gratuity or pres- 
 ent. As this was a mere honorary recompense, the client was 
 under no legal obligation to pay it. But the result necessarily 
 was, that if the usual present was not given, the advocate did not 
 consider himself bound in honor to undertake the advocation of 
 the cause before the courts. Afterwards, Marcus Cincius Ali- 
 mentus, the tribune of the people, procured the passage of the 
 law known as the Cincian law, prohibiting the patron or advocate 
 from receiving any money or other present for any cause; and 
 annulling all gratuities or presents made by the client to the 
 patron or advocate. But as no penalty was prescribed for the 
 breach of this law, it, of course, became a dead letter. The Em- 
 peror Augustus afterwards re-enacted the Cincian law, and pre- 
 scribed penalties for its breach. But towards the end of his 
 reign, the advocates were again authorized to receive fees or pres- 
 ents from their clients. The Emperor Tiberius also permitted 
 them to received such forced gratuities. This led to the abuse 
 referred to by Tacitus, and induced the Senate to insist upon the 
 enforcement, or rather the re-enactment of the Cincian law, or 
 rather the law limiting the amount of the fees of advocates, as 
 referred to by Blackstone (3 Black. Com. 29, note 12). Nero 
 revoked the law of Claudius, which was subsequently re-enacted 
 by the Emperor Trajan, with the additional restriction that the 
 advocate should not be permitted to receive his fee or gratuity 
 until the cause was decided (1 Dupin aine, 39). The younger 
 Pliny mentions a law not referred to by Dupin, which authorized 
 the advocate, after the pleadings in the cause had been made and 
 the judgment had been given, to receive the fee which might be 
 voluntarily offered by the client, either in money or a promise 
 to pay. (See Merlin, art. Honoraires.)" 
 
§ 401] 
 
 EIGHT TO COMPENSATION. 
 
 691 
 
 The rule under the Koman civil law was adopted, with some 
 necessary qualifications, in England.* So, while many instances 
 are to be found in the old French law books of advocates bringing 
 suits for their fees, and recovering on them, this has long ago 
 fallen into disuse.' But in Scotland, where the civil law also 
 prevailed, it seems to have been disregarded in this respect.^ 
 
 § 401. Rule in England. — Under the rule now prevailing in 
 England with respect to the compensation of counsel, a promise 
 made by a client to pay money to a counsel for his advocacy, 
 whether made before or during or after the litigation, has no 
 binding effect,'' even though the services of the advocate are to be 
 
 1 See the section following. 
 
 B In the contest, in 1775, between 
 Mr. Linguet and the order of advo- 
 cates, one of the charges against him 
 was, that he had written to the Duke 
 d'Aiguillon to demand his fees, and 
 threatened him with an action for 
 them; and that his demand upon the 
 duke had been referred to arbitration. 
 7 Journal Historique du Retablisse- 
 men de la Magistrature, 290. See 
 also Livingston v. Cornell, 2 Mart. 0. 
 S. (La.) 281. 
 
 It is considered dishonorable by the 
 Parisian bar to bring suits for coun- 
 sel fees; and those who attempt to do 
 it may be stricken from the roll of 
 advocates. 1 Dupin aing. Prof. 
 d'Advocat, 110, 698. See also Adams 
 V. Stevens, 26 Wend. (N. Y.) 451, 455. 
 
 6 "Erskine, in his Institutes of the 
 Law of Scotland, understands the law 
 in the digest, De extraordinariis 
 cognitionii'us, as authorizing a suit 
 for the fee of a physician or advocate, 
 without a previous agreement for a, 
 specific sum. 2 Ersk. Inst, by Mac- 
 Allen, 695. Whatever may have been 
 the case in Rome itself, it is settled by 
 the law of Scotland, where the civil 
 law prevails, that an action may be 
 
 sustained on a promise to compensate 
 an advocate or a physician for his 
 services. (See Stair's Inst, by Brodie, 
 b; 1, tit. 12, art. 5, and note b; 2 Bell's 
 Law Diet. tit. Fees; Ersk. Inst. b. 3, 
 tit. 3, art. 32; McKenzie v. Burntis- 
 land, Mor. Diet, of Decis. 11,421.)" 
 Adams v. Stevens, 26 Wend. (N. Y.) 
 451, 454, per Walworth, Chancellor. 
 
 TVeitch V. Russell, 3 Q. B. 928, 43 
 E. C. L. 1041; Kennedy v. Broun, 13 
 C. B. N. S. 677, 106 E. C. L. 677. 
 
 In Kennedy v. Broun, 13 C. B. N. S. 
 677, 106 E. C. L. 677, it was said: 
 "Wo are aware that, in the class of 
 advocates, as i every other numerous 
 class, there will be bad men, taking 
 the wages of evil, and therewith also 
 for the most part the early blight that 
 waits upon the servants of evil. We 
 are aware also that there will be many 
 men of ordinary powers, performing 
 ordinary duties without praise or 
 blame. But the advocate entitled to 
 permanent success must unite high 
 powers of intellect with high princi- 
 ples of duty. His faculties and ac- 
 quirements are tested by a ceaseless 
 competition proportioned to the prize 
 to be gained : that is, wealth and power 
 and honor without, and active exercise 
 
692 
 
 EIGHT TO COMPENSATION. 
 
 [§ 401 
 
 performed in a foreign country.' The employment of a barrister is 
 a purely honorary one in the sense that it confers no legal right 
 
 for the best gifts of mind within. He 
 is trusted with interests and priv- 
 ileges and powers almost to an. un- 
 limited degree. His client must rely 
 on him at times for fortune and char- 
 acter and life. The law trusts him 
 with a privilege in respect of liberty 
 of speech which is in practice bounded 
 Qnly by his own sense of duty ; and he 
 may have to speak upon subjects con- 
 cerning the deepest interest of social 
 life, and the innermost feelings of the 
 human soul. The law also trusts him 
 with a power of insisting on answers 
 to the most painful questioning; and 
 this power, again, is in practice only 
 controlled by his own view of the in- 
 terests of truth. It is of the last im- 
 portance that the sense of duty should 
 be in active energy proportioned to 
 the magnitude of these interests. If 
 the law is, that the advocate is inca- 
 pable of contracting for hire to serve 
 when he has undertaken an advocacy, 
 his words and acts ought to be guided 
 by a sense of duty ; that is to say, duty 
 to his client, binding him to exert 
 every faculty and privilege and power 
 in order that he may maintain that 
 client's right, together with duty to 
 the court and himself, binding him to 
 guard against abuse of the powers and 
 privileges intrusted to him, by a con- 
 stant recourse to his own sense of 
 right. If an advocate with these qual- 
 ities stands by the client in time of 
 his utmost need, regardless alike of 
 popular clamor and powerful interest, 
 speaking with the boldness which a 
 sense of duty can alone recommend, 
 we say the service of such an advo- 
 cate is beyond all price to the client; 
 
 and such men are guarantees for the 
 maintenance of his dearest rights; 
 and the words of such men carry a 
 wholesome spirit to all who are influ- 
 enced by them. Such is the system of 
 advocacy intended by the law requir- 
 ing the remuneration to be by gratu- 
 ity. But, if the law allowed the ad- 
 vocate to make a contract of hiring 
 and service, it may be that his mind 
 would be lowered, and that his per- 
 formance would be guided by the 
 words of his contract rather than by 
 principles of duty, — ^that words sold 
 and delivered according to contract, 
 for the purpose of earning hire, would 
 fail of creating sympathy and per- 
 suasion in proportion as they were 
 suggestive of effrontery and selfish- 
 ness; and that the standard of duty 
 throughout the whole class of advo- 
 cates would be degraded. It may also 
 well be, that, if contracts for hire 
 could be made by advocates, an inter- 
 est in litigation might be created con- 
 trary to the policy of the law against 
 maintenance; and the rights of at- 
 torneys might be materially sacrificed, 
 and their duties be imperfectly per- 
 formed by unscrupulous advocates: 
 and these evils, and others which 
 might be suggested, would be unre- 
 deemed by a single benefit that we 
 can perceive.'' 
 
 8 "A member of the bar of England, 
 in accordance with the law of that 
 country and the rules of the profes- 
 sion to which he belongs, renders, and 
 professes to render, services of a pure- 
 ly honorary character. If, in his 
 professional capacity as an English 
 barrister, he accepted a retainer to 
 
§ 401] 
 
 EIGHT TO COMPEITSATION. 
 
 693 
 
 to remuneration for his services; hence the remuneration of a 
 barrister is called honorarium as opposed to merces. Even an 
 express promise by the client himself to pay fees to counsel for 
 his advocacy, whether made before or during or after the litiga- 
 tion, has no binding effect. The relation of counsel and client 
 renders the parties mutually incapable of making any legal con- 
 tract of hiring and service concerning advocacy in litigation. The 
 requests and promises of the client and the services of counsel 
 create neither an obligation nor an inception of obligation, nor 
 any inchoate right whatever capable of being completed and made 
 into a contract by any subsequent promise.® This rule is based 
 on the practice under the civil law." 
 
 There cannot be said to be any hard and fast present day method 
 of fixing compensation to counsel. It is a matter of common 
 knowledge that some prominent leading counsel demand and ob- 
 tain large fees in cases where the parties or their solicitors con- 
 sider it worth while to pay the fees demanded. In ordinary cases 
 
 appear and plead before commission- 
 ers and arbitrators in a foreign coun- 
 try, by whose law counsel practicing 
 in its regular courts were permitted 
 to have suit for their fees, that would 
 not give him a right of action for his 
 honoraria. His client would have a 
 conclusive defense to such an action, 
 on the ground that he was employed 
 as a member of the English bar, and, 
 by necessary implication, upon the 
 same terms as to remuneration upon 
 which the members of that bar are 
 understood to practice." Eeg. v. 
 Doutre, 9 App. Cas. (Eng.) 745. 
 
 9 2 Halsbury's Laws of England, 
 392. 
 
 10 See the preceding section. 
 
 The terra honorarium, as applica- 
 ble to a counsel's fee, was introduced 
 in England by Sir John Davys, who 
 said: "Our learned men in the law 
 do not grow to good estates by any 
 illiberal means, but in a most in- 
 
 genious and worthy manner. For, the 
 fees or rewards which they receive are 
 not of the nature of wages or pay, or 
 that which we call salary or hire. 
 That which is given is called honor- 
 arium, and not merces; it is not cer- 
 tain, not contracted for; for, no price 
 or rate can be set upon counsel which 
 is invaluable and inestimable, so as 
 it is more or less according to circum- 
 stances, viz., the ability of the client, 
 worthiness of the counselor, the 
 weightiness of the cause, and the cus- 
 tom of the country. It is a gift of 
 such a nature, and given and taken 
 up on such terms, as, albeit the able 
 client may not neglect to give it with- 
 out note of ingratitude, yet the coun- 
 selor may not demand it without 
 doing injury to his reputation, ac- 
 cording to that moral rule, Multa hon- 
 este accipi possunt, quae honeste peti 
 non possunt." See Kennedy v. Broun, 
 13 C. B. N. S. 677, 106 E. C. L. 677. 
 
694 EIGHT TO COMPENSATION. [§ 401 
 
 there is an unwritten elastic scale of fees, based partly on the 
 amount of work involved and partly on the importance and value 
 of the matter in dispute. There is a special and much higher 
 scale for Parliamentary drafting, and practice before Parliamen- 
 tary committees. In many cases professional etiquette requires 
 counsel to refrain from taking a brief outside the court or circuit 
 where he usually practices without a special fee: the details of 
 which are of merely local interest. In fixing a brief fee the diffi- 
 culty and importance of the case and the amount involved are 
 properly taken into consideration.^' As a rule it may be said that 
 remuneration is a matter of arrangement (not, of course, a legal 
 contract) between individual counsel and solicitors ; but the allow- 
 ance of the fees agreed upon is subject to the discretion of the 
 taxing master, and the court will not interfere with such dis- 
 cretion unless a gross mistake has been made.*^ 
 
 Where more than one counsel is employed, there is a long set- 
 tled practice that the junior counsel should be allowed a fee pro- 
 portionate to that of his leader on taxation.'* Briefs to two coun- 
 sel are usually allowed on taxation except in cases coming under 
 Order LXV., rule 12 (sum recovered not more than £50). In 
 such cases the costs of briefing more than one counsel will not be 
 allowed, unless the taxing master shall, for special reasons, be of 
 opinion that briefing more than one counsel was proper (Order 
 LXV., rule 46). The fees of more than two counsel are allowed 
 on taxation as between party and party only under special cir- 
 cumstances,'* or even as between solicitor and client.'* 
 
 Payment must be made before taxation and to counsel person- 
 ally. By Order LXV., rule 52, no fee to counsel shall be allowed 
 on taxation unless vouched by his signature. It is obvious that 
 the requirement of signature for fees before taxation is an effec- 
 tive means of securing payment in most cases. Formerly it was 
 
 11 London Chatham & Dover E. Co. 14 Smith v. BuUer, L. R. 19 Eq. 
 V. South Eastern E. Co., 60 L. T. N. S. (Eng.) 473; Peel v. London & North 
 (Eng.) 753. Western R. Co., [1907] 1 Ch. (Eng.) 
 
 12 Atty.-Gen. v. Carrington, 6 Beav. 607. 
 
 (Eng.) 454, 63 Eev. Rep. 142; Brown 16 In re Broad, 15 Q. B. D. (Eng.) 
 
 V. Sewell, 16 Ch. D. (Eng.) 517. 420. 
 
 13 Brown v. Sewell, 16 Ch. D. (Eng.) 
 517. 
 
§ 402] EIGHT TO COMPENSATION. 695 
 
 not thought that counsel's signature for fees on his brief or at 
 the foot of a statement of fees was liable to stamp duty, but it 
 has now been held that a voucher is a receipt within the meaning 
 of the Stamp Act of 1891.^* Counsel in a position to demand 
 prepayment, and others who are fortunate enough to deal with 
 business-like clients, usually receive with the brief a check for 
 the fees marked thereon ; further fees becoming due subsequently, 
 such as refreshers and extra consultations, being settled for after- 
 wards in the usual way. There is no way of settling disputes as 
 to fees unless the parties choose to agree to refer the matter, in- 
 formally, to a^-bitration. Fees not being recoverable, it follows 
 that there can be no direct means of enforcing payment. But 
 in some cases the law society will bring pressure to bear upon an 
 offending member (but not all solicitors are members of the law 
 society) who has received counsel's fees from his client and omits 
 to pay them over. It is believed, however, that this is a somewhat 
 precarious remedy.*' 
 
 As to legal practitioners below the degree of counselor, how- 
 ever, a different rule prevails. Their fees are fixed by statute.*' 
 
 § 402. Criticism of English Rule. — The English rule which 
 regards counsel fees as a mere honorary recompense, the payment 
 of which is not obligatory on the client, has received but slight 
 recognition in this country ; " but, on the contrary, it has been 
 
 18 General Council of the Bar v. In- 18 2 Halsbury's Laws of England, 
 
 land Revenue Com'rs, [1907] 1 K. B. pp. 403-409. See also Reg. v. Doutre, 
 
 (Eng.) 462. 9 App. Cas. (Eng.) 745; Poucher v. 
 
 "In Thornhill v. Evans, 2 Atk. Norman, 3 B. & C. 744, 10 E. C. L. 
 
 (Eng.) 330, Lord Chancellor Hard- 219; Steadman t). Hockley, 15 M. & W. 
 
 wieke said: "Can it be thought that (Eng.) 553. 
 
 this court will suffer a gentleman of 19 In some early Pennsylvania cases 
 
 the bar to maintain an action for fees, the English rule was followed. Mooney 
 
 which is quiddam honorarium, or, if v. Lloyd, 5 Serg. & R. (Pa.) 412; 
 
 he happens to be a mortgagee, to in- Lynch v. Com., 16 Serg. & R. (Pa.) 
 
 sist upon more than the legal interest, 368, 16 Am. Dec. 582; Brackenridge v. 
 
 under pretense of gratuity or fees for McFarlane, Add. (Pa.) 49. These 
 
 business formerly done in the way of a cases have long been overruled. Fos- 
 
 counsel? To admit of such a clandes- ter v. Jack, 4 Watts (Pa.) 334; Wal- 
 
 tine way of coming at fees, is of much ton v. Dickerson, 7 Pa. St. 377 ; 
 
 worse consequence than the other." Balsbaugh v. Frazer, 19 Pa. St. 95. 
 
696 
 
 EIGHT TO COMPENSATION. 
 
 [§ 402 
 
 expressly disapproved as being opposed to the general tenor of our 
 laws.^" It has been aptly said : "We have here no separate orders 
 
 See also the rule in New Jersey, infra, 
 § 405. 
 
 80 Davis V. Webber, 66 Ark. 190, 49 
 S. W. 822, 74 Am. St. Rep. 81, 45 
 L.R.A. 196; McDonald v. Napier, 14 
 Ga. 104; Stevens v. Adams, 23 Wend. 
 (N. Y.) 57; Adams v. Stevens, 26 
 Wend. (N. Y.) 461; Newnan v. Wash- 
 ington, Mart. & Y. (Tenn.) 79. 
 
 English Rule Disapproved. — "What- 
 ever may be the practice of other 
 countries, however, the principle has 
 never been adopted in this [New 
 York] state that the professions of 
 physicians and counselors are merely 
 lionorary, and that they are not of 
 right entitled to demand and receive 
 a fair compensation for their services, 
 especially where there is an agreement 
 to pay them a fixed compensation, or 
 such a reasonable remuneration for 
 their services as those services shall 
 be deemed to be worth. The distinc- 
 tion of patron and client, which 
 formed one of the fundamental laws 
 of ancient Rome, ceased in this state 
 when slavery was abolished; and it is 
 wholly inconsistent with all our ideas 
 of equality to suppose that the busi- 
 ness or profession by which any one 
 earns the daily bread of himself or of 
 his family, is so much more honorable 
 than the business of other members of 
 the community as to prevent him from 
 recovering a fair compensation for 
 his services on that account. I have 
 no doubt, therefore, that by the law 
 of this state, as it has always existed 
 from the time of its first settlement, 
 the lawyer as well as the physician, 
 was entitled to recover a, compensa- 
 tion for his services ; and that such 
 
 services were never considered here as 
 gratuitous and honorary merely." 
 Adams v. Stevens, 26 Wend. (N. Y.) 
 451. 
 
 In the same case. Senator Ver- 
 planck, in speaking of the old English 
 rule, said: "So entirely does this 
 rule depend upon arbitrary custom in 
 Great Britain, that when you cross 
 the Tweed it ceases, for the Scotch 
 law holds that 'honoraries may be pur- 
 sued;' i. e., physicians and counsel- 
 ors may sue for their fees. When 
 such contracts are not discreditable 
 or unheard of, an implied agreement 
 for the usual and fair compensation of 
 such services may be presumed. . . . 
 In a, land wedded to old usages, we 
 know that habit or prejudice may 
 still keep up a distinction in form, 
 that has long ago passed away in sub- 
 stance, and thus compel the counsel- 
 or and the licentiate physician to look 
 only to their honorary fees, while 
 the surgeon or solicitor may sue for 
 his bill; but in our own 'bank-note 
 world,' on this side the Atlantic, and 
 in an age when the greatest poets or 
 novelists are willing to confess that 
 they toil 'for gain, not glory,' it is 
 ridiculous to attempt to perpetuate a 
 monstrous legal fiction, by which the 
 hard-working lawyers of our day, toil- 
 ing till midnight in their offices, are 
 to be regarded in the eye of the law in 
 the light of the patrician juriconsults 
 of ancient Rome, when 
 
 — dulce aici fuit et solemne reclusa. 
 Mane domo vigilare, client! promeri 
 jura ; 
 
 and who at daybreak received the 
 early visits of their humble and de- 
 
§ 402] EIGHT TO COMPENSATION. 697 
 
 in society — none of those exclusive privileges which distinguish 
 the lawyer in England, in order to attach him to the existing 
 government, and which constitute him a sort of noble in the 
 land — rising, by regular gradation, from an apprentice's humble 
 seat in Westminster Hall, until he becomes a sergeant, and then 
 is invited to a seat within the bar as king's counsel ; after a little 
 time [he] receives some sinecure appointment, or is placed on the 
 bench for life, with a salary of many thousand pounds sterling; 
 or is appointed solicitor-general to the king or the queen, or at- 
 torney-general, or perchance attains to the highest professional 
 honors, by taking his seat on the woolsack; equal, whatever may 
 have been his birth or his origin, to the proudest peer he looks 
 upon. None of these privileges are possessed by the advocates 
 and attorneys [in this country]. True, the latter may be pro- 
 moted (if promotion it may be called) from a lucrative practice 
 at the bar to a troublesome and unproductive, though honorable, 
 seat on the bench. But, upon the whole, a lawyer in England is 
 as diiferent from a lawyer here as a man in a plain suit of black 
 or blue — his head such as nature made it — is unlike him in ap- 
 pearance who has his body surrounded with a long robe and his 
 head covered with a large wig." ^' So, in Canada the English 
 
 pendent clients, and pronounced with honordriiomf (2 Atk. (Eng.) 332, 
 
 mysterious brevity the oracles of the Black. Com. 2d vol. 24, 25.) This 
 
 law." Adams v. Stevens, 26 Wend. honorarium is a voluntary donation, 
 
 (N. Y.) 451. in consideration of services which 
 
 2lNewnan v. Washington, Mart. & admit of no compensation in money. 
 
 Y. (Tenn.) 79. Advocates are deemed (God save the 
 
 In McDonald v. Napier, 14 Ga. 104, mark ! ) to practice for honor or in- 
 
 Nisbet, J., said: "We know not the fiuence. And they were deemed so to 
 
 distinctions of attorney, advocate, do at Rome in the time of Cicero. He 
 
 barrister, sergeant, etc., to which so held in small esteem the strictly legal 
 
 great importance is attached in our profession, and declined a fee or pres- 
 
 fatherland. Advocates or counselors ent for prosecuting Verres, and twits 
 
 at [common law] cannot sue for com- Hortensius for receiving an ivory 
 
 pensation according to Blackstone, sphinx for defending him. Yet the 
 
 Lord Mansfield and Lord Hardwicke. great advocate of Rome grew rich on 
 
 The latter, in Thornhill v. Evans, ex- presents. And so much was the be- 
 
 claims with holy horror, 'Can it be stowal of the honorarium abused in 
 
 thought that this court will suffer a his day, that the senate interfered and 
 
 gentleman of the bar to maintain an regulated the matter by a decree, 
 
 action for fees, which is quiddam Notwithstanding Lord Hardwieke's 
 
698 EIGHT TO COMPENSATION. [§ 402 
 
 rule has been regarded in the light of a legal fiction. Thus, says 
 an eminent jurist, "It is not a fact that counsel give their time 
 and intellect for a mere honorarium, and it would not detract 
 from their dignity or from the honor of their profession, nor 
 •would it impair or endanger the due administration of justice, 
 if counsel, like the rest of mankind, were entitled by law to claim, 
 and, if necessary, enforce payment of the reward which they had 
 faithfully earned, and which was dishonestly withheld from them. 
 It is not worth while to keep up a fiction against the actualities 
 and realities of life that counsel do not, like other men, work 
 for money, and need not be paid unless the clients as a mere 
 favor choose to pay them ; for it is notorious if they were not paid 
 they would not work. ... It ir to a great extent a fallacy also 
 to say that counsel fees cannot be sued for at law. They are sued 
 for every day in the year. In England as a rule the client does 
 not confer directly with the counsel. He goes to an attorney or 
 solicitor and lays his case before him. The attorney prepares a 
 written case, and lays it before counsel for his opinion, and he 
 pays the counsel his fees for his opinion, and when the case is 
 ready for trial or argument the attorney prepares a brief and 
 delivers it to the counsel along with his fee. The attorney knows 
 he is obliged to pay the counsel, and that he could not get the 
 counsel to do one act for him if he did not pay him. The client 
 is bound by law to pay all these counsel fees. The counsel can- 
 not sue him for them, but the attorney who has paid them for 
 him can sue him by calling them 'money paid for the client at 
 his request.' " ' Even under the canon law the advocate was en- 
 titled to compensation.^ 
 
 exclamation, it is not questionable an advocate. No proctor shall con- 
 that lawyers in Great Britain above elude any cause without the Icnowl- 
 the grade of attorneys are better paid edge of the advocate retained and 
 in money, and more liberally rewarded feed ; which if any proctor shall do, 
 with honors, than in any other coun- or by any color whatsoever defraud 
 try." the advocate of Ms fee, he shall be 
 
 1 Wilson, J., in McDougall v. Camp- suspended from all practice for six 
 bell, 41 U. C. Q. B. 332. • months, without hope of being restored 
 
 2 Under Canon Law. — The 131st before the said term be fully com- 
 canon enacted that "no judge shall plete." Kennedy v. Broun, 13 C. B. 
 admit any libel without the advice of N. S. 677, 106 E. C. L. 677. 
 
403] 
 
 EIGHT TO COMPEJ!TSATION. 
 
 099 
 
 § 403, Rule in Canada. — As to the right of counsel to con- 
 tract for, and to recover, compensation for professional services in 
 Canada, no general rule can be stated, because, in this respect, the 
 practice in each province is governed by its local laws. The Eng- 
 lish rule, however, has been disapproved.' It has been held that 
 in proceedings before the exchequer and supreme courts, there be- 
 ing no tariff as between attorney and client, an attorney has the 
 right in an action for his costs to establish the quantum meruit of 
 his services.* In some of the provinces the rule is firmly estab- 
 lished that counsel may sue for, and recover, compensation for 
 their services. It has been so held in Ontario.* So, also, accord- 
 ing to the law of Quebec, a member of the bar is entitled, in the 
 absence of special stipulations, to sue for and recover on a qwm,- 
 tum meruit in respect of professional services rendered by him, 
 and may lawfully contract for any rate of remuneration which 
 is not contra bonos mores, or in violation of the rules of the bar ; * 
 nor is that right lost by the performance of services in another 
 province.'' And in the ITorthwest Territory counsel fees are 
 
 3 See the preceding section, note. 
 
 * Paradis v. Bosse, 21 Can. Sup. Ct. 
 419. 
 
 "There is no provision in the pro- 
 cedure of the supreme court for the 
 ascertainment of costs between solic- 
 itor and client. In Boak v. Merchants' 
 Marine Ins. Co., [1 Can. Sup. Ct. 110] 
 decided in June, 1879 (Cass. S. C. 
 Dig., p. 677, No. 45), the chief justice 
 refused an order directing the regis- 
 trar to tax costs between solicitor and 
 client, and stated that the question 
 had been considered by the judges at 
 the organization of the court, and it 
 was deemed advisable not to regulate 
 costs between solicitor and client. Ac- 
 cordingly the rule provides for costs 
 between party and party only, and the 
 tariff of fees is framed on that foot- 
 ing: Rule S. C. 57; and Tariff, Cas- 
 sels' S. C. Prac, p. 148. As a neces- 
 sary consequence of this omission, the 
 
 counsel seeking to enforce recovery of 
 fees for proceedings in the supreme 
 court must resort to an action for 
 compensation. The claim rests on a 
 quantum, meruit, supported by appro- 
 priate evidence. Paradis v. Bosse, 21 
 Can. Sup. Ct. 419; Poucher v. Norman, 
 3 B. & C. 744, 10 E. C. L. 219 ; Armour 
 V. Kilmer, 28 Ont. 618. 
 
 BMcDougall V. Campbell, 41 U. C. 
 Q. B. 332 ; Armour v. Kilmer, 28 Ont. 
 618; Millar v. Kanady, 5 Ont. L. Rep. 
 412; Gibson v. Le Temps Pub. Co., 10 
 Ont. L. Rep. 434. 
 
 6 Reg. V. Doutre, 9 App. Caa. (Eng.) 
 745 (decided under the laws of Que- 
 bec) ; Paradis v. Bosse, 21 Can. Sup. 
 Ct. 419 (decided under the laws of 
 Quebec ) ; Oilman v. Cockshutt, 18 
 Quebec 552. 
 
 'S'Reg. V. Doutre, 9 App. Gas. (Eng.) 
 745 (decided under the laws of Que- 
 bec). 
 
700 
 
 EIGHT TO COMPENSATION. 
 
 [§ 404 
 
 on the same footing as other fees allowed by the tariff, and an 
 advocate can recover them from a client by action.' Solicitors 
 who employ counsel have implied authority to pledge the client's 
 credit for the payment of counsel fees. A legal privity exists be- 
 tween client and counsel, though a solicitor has intervened in the 
 usual way. It is a part of the solicitor's duty to instruct counsel 
 in conducting litigation. There is, therefore, in retaining counsel 
 by the solicitor, no delegation of duty which the solicitor could 
 himself perform, and no benefit accrues to the solicitor by the em- 
 ployment of counsel.® 
 
 § 404. General Rule in United States. — The rule generally 
 prevailing throughout the United States is that an attorney is en- 
 titled to compensation for services rendered at the express or im- 
 plied request of his client ; ^^ and that he may contract with his 
 client for the rendition of services and the compensation which 
 
 8 Hamilton v. McNeill, 2 N. W. Ter. 
 151. See also Murray v. Royal Ins. 
 Co., 1 West. L. Rep. (Vancouver) 8. 
 
 And see Armour v. Dinner, 4 N. W. 
 Ter. 30, which is set out at note 9 of 
 this section. 
 
 9 Armour v. Kilmer, 28 Ont. 618, 
 wherein it was also said that the text 
 statement "marks the line of distinc- 
 tion between cases where the client is 
 held responsible through the agency 
 of his solicitor and those where the 
 solicitor has been made to answer in 
 person for work he directs to be done 
 for the client. Where one attorney is 
 employed by another to do attorney's 
 work, though it be for the benefit of 
 a client, the intendment is that credit 
 is given to the attorney who employs 
 the other, as in Scrace v. Whittington, 
 2 B. & C. 11, 9 E. C. L. 7. Quoad such 
 work the attorney who orders it is the 
 principal." 
 
 Compare Armour v. Dinner, 4 N. W. 
 Ter. 30, wherein Scott, J., said : "I am 
 of opinion that when a solicitor or ad- 
 
 vocate is employed to carry on a suit 
 or an appeal, and in the course of 
 carrying on such suit or appeal, 
 he does what is usual to be done 
 in the way of disbursements for 
 that object, he prima facie renders 
 himself liable to the persons of whom 
 he demands services to be performed 
 or work to be done. The persons he 
 employs are to look to the advocate 
 and not to his clients for their pay; 
 for instance, in appeals to the su- 
 preme court of Canada, the appeal 
 books and faetums have to be printed ; 
 the printer looks to the advocate who 
 employed him and not to his clients." 
 
 10 United States. — Law v. Ewell, 2 
 Cranch (C. C.) 144, 15 Fed. Cas. No. 
 8,127; Farmers' Loan, etc., Co. v. 
 McClure, 78 Fed. 209, 49 U. S. App. 
 43, 24 C. C. A. 64; William Firth Co. 
 V. Millen Cotton Mills, 129 Fed. 141 ; 
 Edwards v. Bay State Gas Co., 172 
 Fed. 971. 
 
 Alabama.— Kidd v. Williams, 132 
 Ala. 140, 31 So. 458, 56 L.E.A. 879. 
 
§ 404] 
 
 EIGHT TO COMPENSATION. 
 
 701 
 
 Arhansas. — Davis v. Webber, 66 
 Ark. 190, 49 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 GalifomiO: — Dunlap v. Standard, 
 etc., Min. Co., 61 Cal. 237; Aydelotte 
 V. Bloom, 13 Cal. App. 56, 108 Pao. 
 877. 
 
 Colorado. — Willard v. Williams, 10 
 Colo. App. 140, 50 Pac. 207. 
 
 Delaware. — Stevens v. Monges, 1 
 Harr. 127. 
 
 Florida. — Stev^art v. Beggs, 56 Fla. 
 565, 47 So. 932. 
 
 Georgia. — McDonald v. Napier, 14 
 Ga. 89 ; Wells v. Haynes, 101 Ga. 841, 
 28 S. E. 968; Dublin, etc., K. Co. v. 
 Akerman, 2 Ga. App. 746, 59 S. E. 10; 
 Coker v. Oliver, 4 Ga. App. 728, 62 
 S. E. 483. 
 
 Indiana. — Pennington v. Nave, 15 
 Ind. 323; Hauss v. Niblack, 80 Ind. 
 407. 
 
 Iowa. — Graham v. Dubuque Special- 
 ty Mach. Works, 138 la. 456, 114 N. 
 W.619, 15 L.R.A.(N.S.) 729; Graham 
 V. Dillon, 144 la. 82, 121 N. W. 47. 
 
 Kansas. — Cooper v. Harvey, 77 Kan. 
 854, 94 Pac. 213. 
 
 Kentucky. — Caldwell v. Shepherd, 6 
 T. B. Men. 389 ; Rust v. Larue, 4 Litt. 
 411, 14 Am. Dec. 172; Lilly v. Pryse, 
 54 S. W. 961, 21 Ky. L. Rep. 1223; 
 Germania Safety Vault, etc., Co. v. 
 Hargis, 64 S. W. 516, 23 Ky. L. Rep. 
 874. 
 
 Louisiana. — Copley v. Harrison, 3 
 Rob. 83; McCarty's Succession, 3 La. 
 Ann. 517; Tenner v. McCan, 49 La. 
 Ann. 600, 21 So. 768; Dinkelspiel v. 
 Pons, 119 La. 236, 43 So. 1018. 
 
 Maine. — McLellan v. Hayford, 72 
 Me. 410, 39 Am. Rep. 343. 
 
 Maryland. — Calvert v. Coxe, 1 Gill 
 123. 
 
 Massachusetts. — Thurston v. Per- 
 cival, 1 Pick. 415; Manning v. Osgood, 
 
 151 Mass. 148, 23 N. E. 732; Blair v. 
 Columbian Fireprooflng Co., 191 Mass. 
 333, 77 N. E. 762. 
 
 Michigan. — Brackett v. Sears, 15 
 Mich. 244; Detroit V. Whittemore, 27 
 Mich. 281 ; Eggleston v. Boardman, 37 
 Mich. 14; Marx v. McMorran, 136 
 Mich. 406, 99 N. W. 396, 11 Detroit 
 Leg. N. 80. 
 
 Minnesota. — Calhoun v. Akeley, 82 
 Minn. 354, 85 N. W. 170; Lind v. 
 Jones, 104 Minn. 302, 116 N. W. 579. 
 
 Missouri. — Webb v. Browning, 14 
 Mo. 354; Frissell v. Haile, 18 Mo. 18; 
 Eoff V. Irvine, 108 Mo. 378, 18 S. W. 
 907, 32 Am. St. Rep. 609; Young D. 
 Lanznar, 133 Mo. App. 130, 112 S. W. 
 17. 
 
 New Eampshire. — Smith v. Davis, 
 45 N. H. 566. 
 
 New York. — Lorillard v. Robinson, 
 2 Paige 276 ; Wilson v. Burr, 25 Wend. 
 386; Adams v. Stevens, 26 Wend. 455; 
 Fischer-Hansen v. Brooklyn Heights 
 R. Co., 173 N. Y. 492, 66 N. E. 395 ; 
 O'Neill V. Crane, 65 App. Div. 358, 72 
 N. Y. S. 812 ; Sanford v. Bronson, 109 
 App. Div. 835, 96 N. Y. S. 859; Ross 
 V. Bayer, etc., Co., 123 App. Div. 404, 
 107 N. Y. S. 1063 ; Steele v. Hammond, 
 136 App. Div. 667, 121 N. Y. S. 589; 
 Spencer v. Busch, 50 Misc. 284, 98 
 N. Y. S. 690; Stoutenburgh v. Fleer, 
 87 N. Y. S. 504; St. John v. Bird, 110 
 N. Y. S. 389. 
 
 Ohio. — Christy v. Douglas, Wright 
 485. 
 
 Oklahoma. — Mellon v. Fulton, 22 
 Okla. 636, 98 Pac. 911, 19 L.R.A. 
 (N.S.) 960. 
 
 Oregon. — Hamilton v. Holmes, 48 
 Ore. 453, 87 Pac. 154. 
 
 Pennsylvania. — Foster v. Jack, 4 
 Watts 334; Walton v. Dickerson, 7 
 Pa. St. 376; Balsbaugh v. Frazer, 19 
 Pa. St. 95; Heblich v. Slater, 217 Pa. 
 
702 
 
 EIGHT TO COMPENSATIOIf. 
 
 [§ 404 
 
 St. 404, 66 Atl. 655 ; Seybert v. Salem 
 Tp., 22 Pa. Super. Ct. 459. 
 
 South Carolina. — Clendinen v. 
 Black, 2 Bailey L. 488, 23 Am. Dee. 
 149; Duncan v. Breithaupt, 1 MeCord 
 L. 149. 
 
 Tennessee. — Newnan v. Washington, 
 Mart. & y. 79 ; Phillips v. Overton, 4 
 Hayw. 291; IngersoU v. Coal Creek 
 Coal Co., 117 Tenn. 263, 10 Ann. Cas. 
 829, 98 S. W. 178, 119 Am. St. Rep. 
 1003, 9 L.R.A.(N.S.) 282; Blount 
 County Bank v. Smith, 48 S. W. 296 ; 
 Campbell v. Provident Sav., etc., Soc, 
 61 S. W. 1090. 
 
 Texas. — Fore v. Chandler, 24 Tex. 
 146; Hames v. Stroud, 51 Tex. Civ. 
 App. 562, 112 S. W. 775; Ealey v. 
 Smith, 73 S. W. 54. 
 
 Virginia. — Parsons v. Maury, 101 
 Va. 516, 44 S. B. 758. 
 
 Vermont. — Vilas v. Downer, 21 Vt. 
 419. 
 
 Washington. — Schultheis v. Nash, 
 
 27 Wash. 250, 67 Pac. 707. 
 
 West Virginia. — Fidelity Ins. etc., 
 Dep. Co. V. Shenandoah Valley R. Co., 
 40 W. Va. 627, 22 S. E. 90; Weigand 
 V. Alliance Supply Co., 44 W. Va. 133, 
 
 28 S. E. 803; Watts v. West Virginia 
 So. R. Co., 48 W. Va. 262, 37 S. E. 700; 
 Keenan v. Scott, 64 W. Va. 137, 61 
 S. E. 806. 
 
 Wisconsin. — Remington v. Eastern 
 R. Co., 109 Wis. 154, 84 N. W. 898, 85 
 N. W. 321. 
 
 "When the courts hold, in the face of 
 the common law to the contrary — in 
 force in this country by express legis- 
 lative enactment and otherwise — that 
 such demands are legal, their decisions 
 can rest upon no solid foundation, 
 other than the recognition of the right 
 to contract, based upon our constitu- 
 tion and laws, which, by reason of its 
 inconsistency with the English law, 
 
 inhibiting the right to contract, has 
 prevented so much of the English law 
 from having force in this country. 
 Because if, by the adoption of tlie 
 common law, in gross, as the rule of 
 decision in this country, those provi- 
 sions of that law were in force, which 
 denied to a counselor any capacity to 
 contract with his client on account of 
 his professional services, and which 
 denied to the attorney any such ca- 
 pacity, beyond that which the law had 
 made for him in assigning to every 
 professional service its fixed and ap- 
 propriate compensation, the courts 
 could not decide that a recovery could 
 be had for professional services 
 founded upon any agreement as to 
 such services, either express or im- 
 plied. These decisions, then, rest upon 
 the ground that the incapacity to con- 
 tract as to professional services has 
 been removed by inconsistent legisla- 
 tion in this country. In this [Arkan- 
 sas] state — as, also, perhaps in most, 
 if not all the other states — there has 
 been no legislation on the subject, ex- 
 cept the general provisions contained 
 in the paramount law, that all free 
 men, when they form a social com- 
 pact, are equal, and have certain in- 
 herent and indefeasible rights, among 
 which are those of acquiring, possess- 
 ing and protecting property, and of 
 pursuing their own happiness. It 
 follows, then, that when the removal 
 of the incapacity to contract for pro- 
 fessional services is placed upon the 
 ground of inconsistent legislation in 
 this country, and that legislation, as 
 in this state, is only the constitutional 
 declaration, it must be removed with- 
 out any other qualification or re- 
 striction than that which attaches to 
 the privilege to contract enjoyed by 
 citizens in general. The disability 
 
405] 
 
 EIGHT TO COMPENSATION. 
 
 703 
 
 he is to receive therefor.*' Indeed, the principles of law appli- 
 cable to the claims of attorneys for services, in so far as their right 
 thereto is concerned, do not differ materially from those applicable 
 to other contracts of employment.'^ 
 
 The right to compensation as dependent on admission to the 
 bar,'' and also the effect of failing to pay a license or occupation 
 tax, where it is imposed, have been considered heretofore.'* 
 
 § 405. Rule in New Jersey. — The general rule stated in the 
 preceding section does not apply in New Jersey. In that juris- 
 diction a distinction between attorneys and counselors is still 
 recognized, although, in most cases, both of these offices unite in 
 
 under the English law was not, spe- 
 cially, that the counselor could not 
 contract with his client for » part of 
 the thing in controversy as a, compen- 
 , sation for his services; but, generally, 
 that in reference to these services, he 
 could not contract at all. There was 
 no provision of the law inhibiting the 
 purchase of a part of the thing in dis- 
 pute, which was peculiar to lawyers: 
 it was a provision common to all per- 
 sons. It is, therefore, requisite to 
 know upon what basis that provision 
 rested in the English law, in order to 
 determine whether, under our legisla- 
 tion, it remains law in this state. Be- 
 yond any reasonable doubt the root of 
 this doctrine was the principle of the 
 common law, that a right of action 
 could not be transferred by him who 
 had the right, to another. This prin- 
 ciple was interlaced with the doctrines 
 of maintenance ■ and champerty, and 
 was founded upon the same reason. 
 Lord Coke says: 'That for avoidance 
 of maintenance, suppression- of right 
 and stirring up suits, nothing in ac- 
 tion, entry or re-entry can be granted 
 over, for so, under color thereof, pre- 
 tended titles might be granted to great 
 
 men, whereby right might be trodden 
 down, and the weak oppressed.' " Ly- 
 tle V. State, 17 Ark. 608. 
 
 11 See infra, § 417. 
 
 12 McLellan v. Hayford, 72 Me. 410, 
 39 Am. Eep. 343; Blair v. Columbian 
 Fireproofing Co., 191 Mass. 333, 77 
 N. E. 762; Young v. Lanznar, 133 
 Mo. App. 130, 112 S. W. 17; Vilas v. 
 Downer, 21 Vt. 419. 
 
 "The circumstances under which a 
 contract to pay a counselor at law 
 for services rendered and expenses in- 
 curred may be inferred, and the char- 
 acter and effect of that contract do 
 not essentially differ from those which 
 pertain to, and regulate contracts for 
 other professional services, skilled 
 labor of any kind, and, in fact, any 
 kind of service in which the amount 
 of the compensation necessarily de- 
 pends largely upon the circumstances 
 under which the service is rendered, 
 its nature, and the charges that are 
 usual and customary for like services." 
 McLellan v. Hayford, 72 Me. 410, 39 
 Am. Rep. 345. 
 
 13 See supra, § 23. 
 
 14 See supra, § 68. 
 
Y04 
 
 EIGHT TO COMPENSATIOIT. 
 
 [§ 405 
 
 one individual. The services of counsel are presumed to be 
 gratuitous; and, therefore, are not recoverable by action.^' It 
 therefore follov7s that a delegation of power to an agent, or to a 
 lawyer, to engage counsel in this state, would carry with it no 
 delegation of power to enter into a contract to pay a specific sum 
 for such services." To this extent the rule would appear to be 
 that which prevails in England." But even the English rule, in 
 so far as it incapacitates counsel to contract with his client for a 
 recompense for his services, is not followed; thus, possibly in 
 recognition of the constitutional right to contract, counsel may, in 
 l^ew Jersey, enter into an agreement with his client for com- 
 pensation, and recover thereon." So, also, where he renders pro- 
 fessional services not as advocate or counsel, but merely in the 
 capacity of attorney, recovery may be had therefor even though 
 such compensation was not agreed upon ; and it is immaterial that 
 he who rendered the services as attorney is also a counselor." It 
 
 iSSeeley v. Crane, 15 N. J. L. 35; 
 VanAtta v. McKinney, 16 N. J. L. 
 235; hSchomp v. Schenck, 40 N. J. L. 
 195, 29 Am. Rep. 219 ; Hopper v. Lud- 
 lum, 41 N. J. L. 182 ; Bentley v. Mary- 
 land Fidelity, etc., Co., 75 N. J. L. 
 828, 15 Ann. Cas. 1178, 63 Atl. 202, 
 127 Am. St. Rep. 837. 
 
 16 Bentley v. Maryland Fidelity, 
 etc., Co., 75 N. J. L. 828, 15 Ann. Cas. 
 1178, 69 Atl. 202, 127 Am. St. Rep. 
 837. 
 
 17 See supra, § 401. 
 
 In Schomp v. Schenck, 40 N. J. L. 
 195, 29 Am. Kep. 219, it was said: 
 "The rule in question has always 
 flourished in full vigor as a part of 
 the common law, and has never, dur- 
 ing any interval of time, fallen into 
 disuse; and that as its only founda- 
 tion was its supposed eflicacy in sus- 
 taining the honorable standing of the 
 advocate, I can by no means admit 
 that such a rule is alien to the pro- 
 fessional ethics of this country. The 
 principle that the advocate cannot 
 
 stipulate with his client for his 
 perquisites, is one of the established 
 customs of our inherited jurispru- 
 dence, and is entirely consistent with 
 out social conditions, and, therefore, 
 in my opinion, is not to be eliminated 
 except by legislation." 
 
 18 Hopper V. Ludlum, 41 N. J. L. 
 182; Zabriskie v. Woodruff, 48 N. J. 
 L. 610, 7 Atl. 336; Bentley v. Mary- 
 land Fidelity, etc., Co., 75 N. J. L. 
 828, 15 Ann. Cas. 1178, 69 Atl. 202, 
 127 Am. St. Rep. 837. 
 
 19 Strong V. Mundy, 52 N. J. Eq. 
 833, 31 Atl. 611. 
 
 In Van Atta v. McKinney, 16 N. J. 
 L. 235, it was said that in principle, 
 it is lawful for a man to conduct and 
 transact all his business by agent or 
 servant, and that his law suits, even 
 in a justice's court, form no exception. 
 Every servant or agent is entitled to 
 a reasonable remuneration for the 
 time, care and labor bestowed upon 
 the business of another; and so en- 
 titled that his claim may bo enforced 
 
§ 406] 
 
 EIGHT TO COMPENSATIOIir. 
 
 705 
 
 has been so held with reference to services rendered in courts not 
 of record.*" 
 
 § 406. Retaining Fees. — The term "retaining fee" or "re- 
 tainer" indicates a preliminary fee given to an attorney or coun- 
 sel to insure and secure his future services, and induce him to act 
 for the client.^ 
 
 The general rule is that an attorney who has been consulted 
 professionally, or engaged in a cause, is entitled to one * reasonable 
 retaining fee,' even though there was no express agreement there- 
 
 in a court of justice, tlie only ex- 
 ception being in the case of the advo- 
 cate, or counsel, resting on its own 
 peculiar reasons. But the remunera- 
 tion allowable in this case is not for 
 learning, talent, or ingenuity. Our 
 law does not suppose these necessary 
 to conduct the business of a justice's 
 court. And remuneration may be re- 
 covered excepting for services strict- 
 ly analogous to the duties of an at- 
 torney at law in the higher courts. 
 Therefore, an attorney may recover 
 a proper recompense for drawing ac- 
 counts, or statements of demand; at- 
 tending the court on the return of 
 process, adjourn day, or trial day, in 
 lieu of the party himself; collecting 
 evidence, or whatever may be neces- 
 sary to prepare the cause for trial, and 
 present it duly to the court. But 
 this does not include speaking to a 
 cause in court, or advocating (how- 
 ever learnedly or eloquently) the one 
 side or the other. The distinction be- 
 tween the duties of an advocate and 
 attorney (though frequently, in our 
 state, discharged by the same person, 
 and therefore often confounded by the 
 community) is well known in law. 
 
 20 Van Atta v. McKinney, 16 N. J. 
 L. 235. 
 
 Atlys. at L. Vol. II.— 45. 
 
 1 Agnew V. Walden, 84 Ala. 504, 4 
 So. 672; Union Surety, etc., Co. v. 
 Tenney, 200 111. 349, 65 N. E. 688; 
 Blair v. Columbian Fireproofing Co., 
 191 Mass. 336, 77 N. E. 762; Sever- 
 ance V. Bizallion, 67 Misc. 103, 121 N. 
 Y. S. 627; Schmidt v. Curtiss, 72 
 Wash. 211, 130 Pac. 89. 
 
 The word "retainer" has been de- 
 fined as signifying, "the act of a 
 client by which he engages an attorney 
 or counselor to manage a cause, either 
 by prosecuting it, when he is plain- 
 tiff, or defending it, when he is de- 
 fendant." Blair v. Columbian Fire- 
 proofing Co., 191 Mass. 333, 77 N. E. 
 762. 
 
 2Schnell v. Schlernitzauer, 82 111. 
 439 ; Dillon v. McManus, 121 Mo. App. 
 37, 97 S. W. 971 ; Morton v. Croghan, 
 1 Cow. (N. Y.) 233. 
 
 8 Alabama. — See Agnew v. Walden, 
 84 Ala. 504, 4 So. 672. 
 
 California. — Knight v. Russ, 77 Cal. 
 410, 19 Pac. 698; Roche v. Baldwin, 
 143 Cal. 186, 76 Pac. 956; Clements 
 V. Watson, 7 Cal. App. 74, 93 Pac. 
 385; Aydelotte v. Bloom, 13 Cal. App. 
 56, 108 Pac. 877. 
 
 Illinois. — Schnell v. Schlernitzauer, 
 82 111. 439 ; Union Surety, etc., Co. v. 
 Tenney, 200 111. 349, 65 N. E. 688, 
 affirming 102 111. App. 95. 
 
706 
 
 EIGHT TO COMPENSATION. 
 
 [§ 406 
 
 for ; * and it is immaterial whether he was or was not afterwards 
 called upon to perform any service,* or that other counsel have 
 been consulted.® 
 
 This rule is based on the theory that an attorney who has been 
 
 Kansas. — Blackman v. Webb, 38 
 Kan. 668, 17 Pae. 464. 
 
 Massachusetts. — ^Aldrich v. Brown, 
 103 Mass. 527; Perry v. Lord, 111 
 Mass. 504; Blair v. Columbian Fire- 
 proofing Co., 191 Mass. 333, 77 N. E. 
 762. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14; Kelly v. Richardson, 69 
 Mich. 430, 37 N. W. 514. 
 
 Oklahoma. — Mellon v. Fulton, 22 
 Okla. 636, 98 Pac. 911, 19 L.R.A. 
 (N.S.) 960. 
 
 4 Blackman v. Webb, 38 Kan. 668, 
 17 Pac. 464; Aldrich v. Brown, 103 
 Mass. 527; Perry v. Lord, 111 Mass. 
 504; Blair ■;;. Columbian Fireproofing 
 Co., 191 Mass. 333, 77 N. E. 762; Eg- 
 gleston V. Boardman, 37 Mich. 14. 
 
 6 Clements v. Watson, 7 Cal. App. 
 74, 93 Pac. 385; Perry v. Lord, 111 
 Mass. 504; Blackman v. Webb, 38 
 Kan. 668, 17 Pac. 464, wherein the 
 court, in upholding the attorney's 
 right to a retaining fee, said: "The 
 right to a retaining fee follows every 
 retainer. When an attorney is en- 
 gaged to prosecute or defend in an 
 action, his entire services in that ac- 
 tion are engaged for his client, and 
 he cannot perform services for the ad- 
 verse party. He is retained by his 
 client for that entire action; and 
 whether his client may ever call upon 
 him to perform services, or not, he 
 cannot perform services in that action 
 for the adverse party, nor can lie re- 
 ceive any fee or compensation from the 
 adverse party. All his skill and abil- 
 ity for that case are at the command 
 
 of his client. A retainer of an at- 
 torney at law is presumably worth 
 something to the client, and presum- 
 ably a loss to the attorney; and 
 whether the attorney is ever called 
 upon to perform any services or not 
 in that case, he may when the case is 
 terminated recover for whatever the 
 evidence shows the retainer was 
 worth." 
 
 If the client, after retaining coun- 
 sel, chose not to avail himself of their 
 services, that is his privilege, but it 
 can furnish no ground for a refusal 
 to pay the stipulated retaining fee. 
 Union Surety, etc., Co. v. Tenney, 200 
 111. 349, 65 N. E. 688, affirming 102 
 m. App. 95. 
 
 Compare Yates v. Shepardson, 27 
 Wis. 238, wherein the court said: 
 "We do not suppose a general retainer, 
 where no actual services are rendered 
 for which charges are made, entitles 
 an attorney to sue his client for an 
 annual counsel fee. Such is not our 
 understanding of the effect of such an 
 engagement. Of course parties may, 
 and sometimes do, agree upon an 
 amount which shall be paid as an an- 
 nual counsel fee for professional ad- 
 vice, but this is the result of special 
 contract. No such annual counsel fee 
 can be claimed in consequence of a 
 general retainer; nor, for that matter, 
 can any claim for compensation be 
 made by reason thereof, where no ser- 
 vices have been rendered." 
 
 6 Pate V. Maples, (Tenn.) 43 S. W. 
 740. 
 
§ 406] EIGHT TO OOMPENSATIOJSr. 707 
 
 retained in a cause is, in consequence of such retainer, debarred 
 from accepting employment from others whose interests are antag- 
 onistic to those of the person so retaining him ; and further, that 
 the act of retaining counsel places his skill, ability, and profes- 
 sional influence, at the disposal of the client.'' So it has been 
 held that it is no defense to an action on a contract to pay an at- 
 torney a percentage on all accounts collected "that it was entered 
 into, not for the purpose of procuring plaintiff's legal services," 
 but to silence his opposition to defendant's scheme in a matter of 
 a public concern; it appearing that the attorney held no oiBce.' 
 
 But it has been held that a retaining fee is recoverable only 
 where there is an express promise to pay it,' or where such a 
 promise can be implied from the facts established,^" and an at- 
 torney is not entitled to recover a retainer for services in suits 
 that were never brought, in the absence of an express agreement 
 to that effect, since an agreement to pay a retainer for services 
 which are never performed cannot be implied.'* 
 
 In estimating the value of an attorney's services, it has been 
 held that it is proper to include in the consideration a reasonable 
 retaining fee ; '^ but this seems to go farther than the rule war- 
 rants, at least in so far as it tends to sustain the view that a re- 
 taining fee may be recovered in addition to the actual value of 
 the services rendered. The proper scope and application of the 
 right to charge retainers is to remuneraite counsel for being de- 
 
 f Alabama. — Agnew v. Walden, 84 ]44 U. S. 581, 12 S. Ct. 751, 36 U. S. 
 
 Ala. 504, 4 So. 672. (L. ed.) 551. 
 
 Kansas. — Blackman v. Webb, 38 lo Orr v. Brown, 69 Fed. 216, 30 U. 
 
 Kan. 668, 17 Pac. 464. S. App. 405, 16 C. C. A. 197; Buckles 
 
 ilfame.— McLellan v. Hayford, 72 v. Northeast Kansas Tel. Co., 79 Kan. 
 
 Me. 410, 39 Am. Kep. 345. 34, 99 Pac. 813 ; McLellan v. Hayford, 
 
 Massachusetts. — Blair v. Columbian 72 Me. 410, 39 Am. Kep. 345. 
 
 Fireproofing Co., 191 Mass. 333, 77 N. " Windett v. Union Mut. Life Ins. 
 
 E. 762. Co., 144 U. S. 581, 12 S. Ct. 751, 36 
 
 New York. — In re Schaller, 10 U. S. (L. ed.) 551, affirming 36 Fed. 
 
 Daly 57. 838. 
 
 OklaJioma.—Mellon v. Fulton, 22 12 Knight v. Buss, 77 Cal. 410, 19 
 
 Okla. 636, 98 Pac. 911, 19 L.R.A. Pac. 698; Roche v. Baldwin, 143 Cal. 
 
 (N.S.) 960. 186, 76 Pac. 956; Clements v. Wat- 
 
 8 Jacks V. Thweatt, 39 Ark. 340. son, 7 Cal. App. 74, 93 Pac. 385. 
 
 9 Windett v. Union Mut. L. Ins. Co., 
 
Y08 EIGHT TO COMPENSATION. [§ 40Y 
 
 prived, by being retained for one party, of tbe opportunity of 
 rendering services for and receiving pay from the other; not to 
 swell the amount of a bill which accrues for services rendered 
 throughout the progress of the cause, and which should, and usual- 
 ly does, contain specific charges for them all.*' 
 
 In determining what is a reasonable sum to be charged by an 
 attorney for entering into professional relations with a client, a 
 variety of considerations are pertinent; among them are the 
 ability and reputation of the attorney and the extent of the de- 
 mand for his services by others in the community ; the probability 
 or improbability of the retainer's interfering with his professional 
 relations with other persons who are, or who are likely to become, 
 his clients; the magnitude and nature of the business for which 
 he is retained, and the probability or improbability of its bring- 
 ing him large remuneration from the client retaining him. If 
 his retainer is general, including all business of the client for a 
 stated period, the pertinent considerations are different from 
 those resulting from an employment for a single case.** 
 
 In Canada it has been held that a retaining fee from a client 
 to his solicitor is a mere gratuity; and, therefore, a promise to 
 pay such a fee being without consideration, the solicitor has no 
 right to deduct the amount thereof from funds of the client that 
 may come into his hands.*' But an agreement between a solicitor 
 and his client for the payment to the solicitor of a yearly salary 
 has been upheld.** 
 
 For Services of Associate Counsel. 
 
 § 407. Unauthorized Employment. — In accordance with 
 the principle stated heretofore to the effect that an attorney has no 
 
 13 McLellan v. Hayford, 72 Me. 410, He is to be paid, of course, but he is 
 
 39 Am. Rep. 343. not to be allowed anything as a re- 
 
 Attorney for Assignee of Creditors. tainer." Matter of Schaller, 10 Daly 
 
 — "An attorney who is employed by (N. Y.) 57. 
 
 the assignee of creditors as his gen- 14 Blair v. Columbian Fireproofing 
 
 eral adviser in all matters relating to Co., 191 Mass. 333, 77 N. E. 762. And 
 
 the assignment, puts himself in such see infra, % 449. 
 
 a position by becoming such general 15 In re Solicitor, 22 Ont. L. Rep. 
 
 adviser that he cannot ask a retainer 30, 19 Ann. Cas. 488. See also In re 
 
 in such suits as he is called on to try McBride, 2 Ch. Chamb. (Ont.) 153. 
 
 in the course of his regular duties. iSFalkiner v. Grand Junction R. 
 
§ 407] 
 
 EIGHT TO COMPENSATIOIT. 
 
 709 
 
 implied power to delegate the authority reposed in him by his 
 client/'' it is well settled that he caimot employ associate counsel 
 at the expense of his client unless he has been duly authorized to 
 do so;*' and if he does so without authority, he alone will be re- 
 
 Co., 4 Ont. 350. But see Stevenson v. 
 Kingston, 31 U. C. C. P. 333. 
 
 IT See swpra, % 210. See also Bent- 
 ley V. Maryland Fidelity, etc., Co., 75 
 N. J. L. 828, 15 Ann. Cas. 1178, 69 
 Atl. 202, 127 Am. St. Eep. 837. 
 
 w England. — Mostyn v. Mostyn, L. 
 R. 5 Ch. 457, 39 L. J. Ch. 780, 22 L. 
 T. N. S. 461, 18 W. R. 657; In re Har- 
 risson, 97 L. T. N. S. 902, 77 L. J. Ch. 
 143, 24 Times L. Rep. 118; Scrace v. 
 Whittington, 2 B. & C. 11, 9 E. C. L. 
 7. See also Waller v. Holmes, 6 Jur. 
 N. S. 1367. 
 
 Canadla. — Hearn v. McNeil, 32 Nova 
 Scotia 210; Armour v. Dinner, 4 N. 
 W. Ter. 30; Augg v. Filiatrault, 10 
 Quebec Super. Ct. 157; Taylor v. Alex- 
 ander, 12 Quebec Super. Ct. 159; Ex 
 p. James, 8 N. Burns. 286. Compare 
 Armour v. Kilmer, 28 Ont. 618, where- 
 in it was held that a solicitor has im- 
 plied authority to employ counsel. 
 
 Umited States. — Northern Pac. R. 
 Co. V. Clarke, 106 Fed. 794, 45 C. C. 
 A. 635. * 
 
 Alabama. — King v. Pope, 28 Ala. 
 601; Humes v. Decatur Land Im- 
 provement & Furnace Co., 98 Ala. 461, 
 13 So. 368. 
 
 Arkansas. — Fenno v. English, 22 
 Ark. 170. 
 
 California. — Porter v. Elizalde, 125 
 Cal. 204, 57 Pac. 899 ; Miller v. Ball- 
 erino, 135 Cal. 566, 67 Pac. 1046, 68 
 Pac. 600. 
 
 Colorado. — Emblem v. Bicksler, 34 
 Colo. 496, 83 Pac. 636; McCarthy v. 
 Crump, 17 Colo. App. 110, 67 Pac. 
 
 343; Lathrop v. Hallett, 20 Colo. App. 
 207, 77 Pac. 1095. 
 
 / Georgia. — Mathews v. Giles, 108 Ga. 
 364, 33 S. E. 1006. 
 
 Illinois. — Chicago, St. C. & M. E. 
 Co. V. Larned, 26 111. 218; Hughes v. 
 Zeigler, 69 111. 38; Evans v. Mohr, 
 153 111. 561, 39 N. E. 1083; Chicago, 
 etc.. Traction Co. v. Flaherty, 222 111. 
 67, 78 N. E. 29; Continental Adjust- 
 ment Co. V. Hoffman, 123 111. App. 69. 
 
 Indiana. — Hogate v. Edwards, 65 
 Ind. 372; Brown v. Underbill, 4 Ind. 
 App. 77, 30 N. E. 430; Moore v. Orr, 
 10 Ind. App. 89, 37 N. E. 554. 
 
 Iowa. — McCrary v. Ruddick, 33 
 Iowa 521; Gibson v. Chicago, M. & 
 St. P. R. Co., 122 Iowa 565, 98 N. W. 
 474; Gillilland v. Brantner, 145 Iowa 
 275, 121 N. W. 1047. 
 
 S:e»it«c7i;j/.— Pittsburgh, C. & St. L. 
 R. Co. V. Woolley, 12 Bush 451 ; Whit- 
 low V. Whitlow, 109 Ky. 573, 60 S. W. 
 182. 
 
 Louisiana. — Voorhies v. Harrison, 
 22 La. Ann. 85; Forman v. Sewerage, 
 etc.. Board, 119 La. 49, 12 Ann. Cas. 
 773, 43 So. 908. 
 
 Massachusetts. — Brigham v. Foster, 
 7 Allen 419. 
 
 Michigan. — Lillis v. Pennsylvania 
 Casualty Co., 131 Mich. 301, 91 N. W. 
 165. 
 
 Minnesota. — White v. Esch, 78 
 Minn. 264, 80 N. W. 976; Calhoun v. 
 Akeley, 82 Minn. 354, 85 N. W. 170. 
 
 Missouri. — Young v. Crawford, 23 
 Mo. App. 434; Bissell v. Zorn, 122 
 Mo. App. 688, 99 S. W. 458. 
 
 Nebraska. — McDowell v. Gregory, 
 
no 
 
 EIGHT TO COMPENSATION. 
 
 [§ 407 
 
 sponsible to the counsel so retained." An attorney may, however, 
 incur a reasonable expense in conducting the business intrusted 
 to his care,'" even though it involves the employment of another 
 attorney ; thus vyhere a case is pending in another county, and it is 
 necessary to attend to minor matters therein such as docket calls, 
 obtaining orders, etc., which do not require the personal atten- 
 tion of counsel familiar with the cause, the fees paid to local 
 counsel, employed by the original attorney to act for him, are 
 properly chargeable to the client, for the reason that the rendition 
 of siich services necessarily involved expenditure, either by going 
 to such other county in person, or by employment of counsel ; and, 
 having adopted the latter method, the fees of such counsel are as 
 properly chargeable as the traveling expenses would have been.* 
 
 14 Neb. 33, 14 N. W. 899; Sedgwick v. 
 Bliss, 23 Neb. 617, 37 N. W. 483. 
 
 New Jersey. — Bentley v. Maryland 
 Fidelity, etc., Co., 75 N. J. L. 828, 15 
 Ann. Caa. 1178, 69 Atl. 202, 127 Am. 
 St. Rep. 837. 
 
 New York. — Coolc v. Eitter, 4 E. D. 
 Smith 253; Matter of Bleakley, 5 
 Paige 311; Macniffe v. Ludington, 13 
 Abb. N. Cas. 407, 67 How. Pr. 13; 
 In re Hynes, 105 N. Y. 560, 12 N. E. 
 60 ; Harwood v. La Grange, 137 N. Y. 
 538, 32 N. E. 1000; Matter of Bork-. 
 Strom, 63 App. Div. 7, 71 N. Y. S. 
 451, affirmed 168 N. Y. 639, 61 N. E. 
 1127; Bassford v. Swift, 17 Misc. 149, 
 39 N. Y. S. 337 ; Meany v. Rosenberg, 
 28 Misc. 520, 59 N. Y. S. 582, 32 Misc. 
 96, 65 N. Y. S. 497; Dulon v. Camp, 
 28 Misc. 548, 59 N. Y. S. 508; Knee- 
 land V. Hurdy, 97 N. Y. S. 957. 
 
 Pennsylvania. — ^Hewes v. Erie, etc., 
 Transp. Co., 31 Pa. Co. Ct. 75. 
 
 Texas. — Allcorn v. Butler, 9 Tex. 
 56; Smith v. Lipscomb, 13 Tex. 537; 
 Ratcliff V. Baird, 14 Tex. 43. 
 
 Vermont. — Briggs v. Georgia, 10 Vt. 
 fi8; Scott V. Hoxsie, 13 Vt. 50; Pad- 
 
 dock r. Colby, 18 Vt. 485; Willard v. 
 Danville, 45 Vt. 93. 
 
 ^¥isconsin. — Vilas v. Bundy, 106 
 Wis. 168, 81 N. W. 812. 
 
 19 District of Columbia. — Dudley v. 
 Owen, 31 App. Cas. 177. 
 
 Georgia. — Mathews v. Giles, 108 
 6a. 364, 33 S. E. 1006. 
 
 Illinois. — English v. McConnel, 23 
 111. 513. 
 
 New York. — Crosby j;. Kropf, 33 
 App. Div. 446, 54 N. Y. S. 76; Dulan 
 V. Camp, 28 Misc. 548, 59 N. Y. S. 508. 
 
 Vermont. — Scott v. Hoxsie, 13 Vt. 
 50. 
 
 20 See supra, § 252. See also Eggle- 
 ston V. Boardman, 37 Mich. 14 ; Engle 
 V. Chipman, 51 Mich. 524, 16 N. W. 
 886; Kingsbury v. Joseph, 94 Mo. 
 App. 298, 68 S. W. 93; Vilas v. Bundy, 
 106 Wis. 168, 81 N. W. 812. 
 
 1 Dillon V. Watson, 3 Neb. (unof- 
 ficial) Rep. 530, 92 N. W. 156. 
 
 Compare Whitlow v. Whitlow, 109 
 Ky. 573, 60 S. W. 182, wherein it was 
 said that the phrase "necessary ex- 
 penses" does not include a fee paid to 
 associate counsel retained by the orig- 
 inal attorney. 
 
§ 408] 
 
 EIGHT TO COMPENSATION. 
 
 711 
 
 § 408. Ratification of Unauthorized Employment. — 
 
 Even though an attorney unauthorizedly employs associate coun- 
 sel to aid him, such employment may be subsequently ratified by 
 the client; and, in such case, the client will be liable for the fees 
 of the counsel so retained.^ But the mere fact that the client has 
 knowledge that counsel, not employed by him, is rendering him 
 beneficial services, and that he permits him to do so without ob- 
 jection, is not sufiicient to establish a ratification ; * and this is 
 especially true where the client has good reason to suppose that 
 the counsel associated was looking to the original attorney for his 
 fees.* ISTor does the payment by the client of one associate coim- 
 sel, estop him from denying his liability to another employed by 
 the original attorney in the same matter.* Ratification generally 
 has been considered heretofore'.* 
 
 2 Alaiama. — Johnson v. Cunning- 
 ham, 1 Ala. 249; King v. Pope, 28 
 Ala. 601. 
 
 Arkansas. — Fenuo v. English, 22 
 Ark. 170. 
 
 lUinois.—FTice v. Hay, 132 111. 543, 
 24 N". E. 620, affirming 29 111. App. 
 552, 31 111. App. 293. 
 
 Indiana. — Hogate v. Edwards, 65 
 Ind. 372; Moore v. Orr, 10 Ind. App. 
 89, 37 N. E. 554. 
 
 Iowa. — Dorr v. Dudley, 135 la. 20, 
 112 N. W. 203. 
 
 Kansas. — ^AUen v. Parish, 65 Kan. 
 496, 70 Pac. 351. 
 
 ICentucky. — Pittsburgh, C. & St. L. 
 E. Co. V. Woolley, 12 Bush 451. 
 
 Massachusetts. — ^Brigham v. Foster, 
 7 Allen 419; Aldrich v. Brown, 103 
 Mass. 527. 
 
 Missouri. — Southgate v. Atlantic & 
 P. R. Co., 61 Mo. 89. 
 
 'Nebraska. — Sedgwick v. Bliss, 23 
 Neb. 617, 37 N. W. 483. 
 
 ffew Jersey. — Bentley v. Maryland 
 Fidelity, etc., Co., 75 N. J. L. 828, 15 
 Ann. Cas. 1178, 69 Atl. 202, 127 Am. 
 St. Rep. 837. 
 
 New York. — Bratt v. Scott, 63 Hun 
 632 nlem., 18 N. Y. S. 507; Reese v. 
 Resburgh, 54 App. Div. 378, 68 N. Y. 
 S. 633; Bassford v. Swift, 17 Misc. 
 149, 39 N. Y. S. 337. 
 
 North Carolina. — Rogers v. McKen- 
 zie, 81 N. C. 164. 
 
 Ohio. — Holmes v. Holland, 11 Ohio 
 Dec. (Reprint) 768, 29 Cine. L. Bui. 
 115. 
 
 Texas. — Allcorn v. Butler, 9 Tex. 
 56; Smith v. Lipscomb, 13 Tex. 537. 
 
 Vermont. — Briggs v. Georgia, 1 Vt. 
 68 ; Paddock 1). Colby, 18 Vt. 485. 
 
 8 Porter v. Elizalde, 125 Cal. 204, 
 57 Pac. 899 ; McCarthy v. Crump, 17 
 Colo. App. 110, 67 Pac. 343; Lathrop 
 V. Hallett, 20 Colo. App. 207, 77 Pac. 
 1095; Young v. Crawford, 23 Mo. App. 
 434. 
 
 4 McCarthy v. Crump, 17 Colo. App. 
 110, 67 Pac. 343; Hudspeth v. Yetzer, 
 78 Iowa 13, 42 N. W. 529. See also 
 Evans v. Mohr, 42 111. App. 225, af- 
 firmed 153 111. 561, 39 N. E. 1083. 
 
 5 Evans v. Mohr, 153 111. 561, 39 N. 
 E. 1083, affirming 42 111. App. 225. 
 
 6 See supra, §§ 211-214. 
 
712 
 
 BIGHT TO COMPENSATION. 
 
 [§§ 409,410 
 
 § 409. Authorized Employment. — Where an attorney is 
 authorized to retain associates, the' counsel so employed may, of 
 course, recover from the client the reasonable value of the services 
 rendered ; ' and this right is not affected by the existence of a 
 secret agreement between the client and the original attorney that 
 the latter is to pay the fees of his associate.* So, also, a client 
 will be liable for the compensation of associate counsel retained 
 by an attorney whose employment is of such a general character 
 as to amount to an agency for the client in the management of 
 his legal business.' 
 
 For Services Rendered in Aid of Indigent Persons. 
 
 § 410. Common Law Rule in Criminal Cases. — The power 
 of the court to order a member of its bar to defend indigent per- 
 sons charged with crime has been considered heretofore.^" 
 
 It is well settled that, in the absence of statutory authority to 
 the contrary, an attorney so appointed is not entitled to com- 
 
 "> California. — ^Miller v. Ballerino, 
 135 Cal. 566, 67 Pac. 1046, 68 Pac. 
 600. 
 
 Colorado. — Emblem v. Bicksler, 34 
 Colo. 496, 83 Pae. 636. 
 
 lovM. — McCrary v. Ruddick, 33 
 Iowa 521; Dorr v. Dudley, 135 Iowa 
 20, 112 N. W. 203. 
 
 Kansas. — Allen v. Parish, 65 Kan. 
 496, 70 Pac. 351. 
 
 Massachusetts. — Brigham v. Foster, 
 7 Allen 419; Aldrich v. Brown, 103 
 Mass. 527 ; Hyde v. Moxie Nerve-Food 
 Co., 160 Mass. 559, 36 N. E. 585. 
 
 Missouri. — Bissell v. Zorn, 122 Mo. 
 App. 688, 99 S. W. 458; Trimble v. 
 Guardian Trust Co., 244 Mo. 228, 148 
 S. W. 934. 
 
 ISew Jersey. — Bentley v. Maryland 
 Fidelity, etc., Co., 75 N. J. L. 828, 15 
 Ann. Cas. 1178, 69 Atl. 202, 127 Am. 
 St. Rep. 837. 
 
 Tetjcas. — Denison First Nat. Bank v. 
 Hodges, 62 S. W. 827. But see Hern- 
 
 don V. Lammers, 55 S. W. 414, where- 
 in it was held that the counsel was 
 bound by the agreement between the 
 client and original attorney. 
 
 8 McCrary v. Ruddick, 33 Iowa 
 521; Brigham v. Foster, 7 Allen 
 (Mass.) 419. 
 
 9 Northern Pac. R. Co. v. Clarke, 
 106 Fed. 794, 45 C. C. A. 635; Cross 
 V. Atchison, T. & S. F. R, Co., 141 
 Mo. 132, 42 S. W. 675, affirming 71 Mo. 
 App. 585; Fowler v. Iowa Land Co., 
 18 S. D. 131, 99 N. W. 1095; Briggs 
 V. Georgia, 10 Vt. 68. 
 
 In Singer v. Steele, 24 111. App. 58, 
 where the attorney entered into a 
 partnership after being retained to 
 make a collection, it was held that his 
 partner had authority to render serv- 
 ices in eifecting the collection, and 
 that the client was liable for such 
 services. 
 
 10 See supra, § 87. 
 
§ 410] 
 
 BIGHT TO COMPENSATION. 
 
 713 
 
 pensation for his services ; ^* the defense of poor prisoners, upon 
 assignment by the court, being one of the duties contemplated by 
 the lawyer's oath of office, which he impliedly assumes in accept- 
 ing the privilege of practicing law,'* though it is frequently spoken 
 of as a charity.*' 
 
 Requiring an attorney to defend poor persons without compen- 
 sation is not antagonistic to the constitutional provision relating 
 to the taking of property without compensation or without due 
 process of law." Nor is the question of the defendant's right to ap- 
 
 11 England.— Wright v. Burroughes, 
 
 3 C. B. 344, 54 E. C. L. 344; Keg. v. 
 Fogarty, 5 Cox C. C. 161. 
 
 United States. — Whelan v. Manhat- 
 tan R. Co., 86 Fed. 219; Nabb v. U. 
 S., 1 Ct. CI. 173. 
 
 Alahama. — Posey v. Mobile County, 
 50 Ala. 6. 
 
 Arkansas. — Arkansas County v. 
 Freeman, 31 Ark. 266. 
 
 California. — Eowe v. Yuba County, 
 17 Cal. 61 ; Lamont v. Solano County, 
 49 Cal. 158. 
 
 Georgia. — Elam v. Johnson, 48 Ga. 
 348. 
 
 Illinois. — Vise v. Hamilton County, 
 19 111. 78; Johnson v. Whiteside Coun- 
 ty, 110 111. 22. 
 
 Kansas. — Case v. Shawnee County, 
 
 4 Kan. 511, 96 Am. Dee. 190. 
 Louisiana. — State v. Simmons, 43 
 
 La. Ann. 991, 10 So. 382. 
 
 Michigan. — Bacon v. Wayne Coun- 
 ty, 1 Mich. 461. 
 
 Mississippi. — Dismukea v. Noxubee 
 County, 58 Miss. 612, 38 Am. Kep. 
 339. 
 
 Missouri. — Kelley v. Andrew Coun- 
 ty, 43 Mo. 338. 
 
 Montana. — Johnston v. Lewis & 
 Clark County, 2 Mont. 159. 
 
 Nevada. — Washoe County v. Hum- 
 boldt County, 14 Nev. 123. 
 
 New York. — People v. Onondaga 
 
 County, 3 How. Pr. N. S. 1, 4 N. Y. 
 Crim. 102 ; People v. Niagara County, 
 78 N. Y. 622. 
 
 Pennsylvania. — Wayne County v. 
 Waller, 90 Pa. St. 99, 35 Am. Rep. 
 636. 
 
 Tennessee. — Wright v. State, 3 
 Heisk. 256; House v. Whitis, 5 Baxt. 
 690. 
 
 Washington. — Presby v. Klickitat 
 County, 5 Wash. 329, 31 Pae. 876. 
 
 l« Nabb V. U. S., 1 Ct. CI. 173 ; Vise 
 V. Hamilton County, 19 111. 78. 
 
 13 Arkansas. — ^Arkansas County v. 
 Freeman, 31 Ark. 266. 
 
 California. — Rowe v. Yuba County, 
 17 Cal. 61. 
 
 Georgia. — Elam v. Johnson, 48 Ga. 
 348. 
 
 Illinois. — Johnson v. Whiteside 
 County, 110 111. 22. 
 
 Montana. — Johnston v. Lewis & 
 Clarke County, 2 Mont. 159. 
 
 New York. — People v. Onondaga 
 County, 3 How. Pr. N. S. 1, 4 N. Y. 
 Crim. 102. 
 
 Pennsylvania. — Wayne County v. 
 Waller, 90 Pa. St. 99, 35 Am. Rep. 
 636. 
 
 Washington. — Presby v. Klickitat 
 County, 5 Wash. 329, 31 Pac. 876. 
 
 1* Presby v. Klickitat County, 5 
 Wash. 329, 31 Pac. 876. 
 
714 
 
 EIGHT TO COMPENSATION. 
 
 [§ 410 
 
 pear by counsel involved ; for while he undoubtedly has such right, 
 the government is under no obligation to provide, or to pay, his 
 counsel,^' in the absence of definite legislation to that effect.^® 
 
 A different doctrine, however, formerly prevailed in some juris- 
 dictions, wherein, although it was recognized that the courts have 
 abundant power to appoint attorneys to defend poor persons, it 
 was held that they could not require such attorneys to render 
 services gratuitously ; but that, upon such appointment, there arose 
 an implied promise on the part of the county or state to pay a 
 reasonable compensation to the attorney so appointed ; " and, in 
 accordance with this ruling, it was also held that a statute necessi- 
 
 16 Alabama. — ^Posey v. Mobile Coun- 
 ty, 50 Ala. 6. 
 
 Illinois. — ^Johnson v. Whiteside 
 County, 110 111. 22. 
 
 Missouri. — Kelley v. Andrew Coun- 
 ty, 43 Mo. 338. 
 
 ^ew York. — People v. Albany Coun- 
 ty, 28 How. Pr. 22, followed without 
 discussion in People v. Niagara Coun- 
 ty, 78 N. Y. 622. 
 
 Utah. — Pardee v. Salt Lalce County, 
 39 Utah 482, 118 Pae. 122, 36 L.R.A. 
 (N.S.) 377. 
 
 Washington. — Presby v. Klickitat 
 County, 5 Wash. 329, 31 Pac. 876. 
 
 "It is true that it would be a dis- 
 grace to the jurisprudence of the age 
 if a man should be tried without 
 counsel merely because he is poor. It 
 would' be a worse disgrace if a man 
 were allowed to starve in a country 
 like this. Yet, if the legislature 
 makes no provision for the poor, those 
 who give in private charity would 
 look in vain to the county for reim- 
 bursement. . . . The law has 
 given us no power. If the boards of 
 county commissioners close their bars 
 to the appeals, and the legislature 
 will not act, then, as heretofore, the 
 matter must rest in the tender con- 
 science and manly honor of the mem- 
 
 bers of the bar." Case v. Shawnee 
 County, 4 Kan. 511, 96 Am. Dec. 190. 
 
 16 United States. — Nabb v. U. S., 1 
 Ct. CI. 173. 
 
 Alabama. — Posey v. Mobile County, 
 50 Ala. 6. 
 
 Georgia. — Elam v. Johnson, 48 Ga. 
 348. 
 
 Illinois. — Johnson v. Whiteside 
 County, 110 111. 22. 
 
 Kansas. — -Case v. Shawnee County, 
 4 Kan. 511, 96 Am. Dec. 190. 
 
 Lomsiana. — State v. Simmons, 43 
 La. Ann. 991, 10 So. 382. 
 
 Montana. — Johnston v. Lewis & 
 Clark County, 2 Mont. 159. 
 
 New York. — People v. Onondaga 
 County, 3 How. Pr. N. S. 1, 4 N. Y. 
 Crim. 102; People i. Albany County, 
 28 How. Pr. 22. 
 
 Pennsylvania. — Wayne County v. 
 Waller, 90 Pa. St. 99, 35 Am. Kep. 636. 
 
 Utah. — Pardee v. Salt Lake County, 
 39 Utah 482, 118 Pac. 112, 36 L.E.A. 
 (N.S.) 377. 
 
 Washington. — Presby r. Klickitat 
 County, 5 Wash. 329, 31 Pac. 876. 
 
 " Blythe v. State, 4 Ind. 525 ; Webb 
 v. Baird, 6 Ind. 13; Baker v. Knox 
 County, 18 Ind. 170; Clay County v. 
 McGregor, 171 Ind. 634, 17 Ann. Cas. 
 333, 87 N. E. 1; Hall v. Washington 
 
§ 411] EIGHT TO COMPENSATION. 715 
 
 tating gratuitous service on the part of attorneys was unconsti- 
 tutional." 
 
 But it is to be observed that the decisions in these jurisdictions 
 were generally based on some statutory authority ; as, for instance, 
 a statute compelling the appointment of counsel to defend indigent 
 prisoners.*^ It was also conceded that while it was true that 
 persons accused of crime had the constitutional right to be heard 
 by cou.nsel, it was not guaranteed that counsel would be furnished 
 for them at the public expense.'" 
 
 In all of these jurisdictions compensation is now allowed under 
 statutes which, though possibly not as definite in some instances 
 as would be required where the general rule prevails, are, never- 
 theless, construed to warrant the payment of counsel appointed 
 thereunder to defend poor persons charged with crime.''' 
 
 § 411. Statutes Providing for Compensation in Criminal 
 Cases. — In several states statutes have been enacted which pro- 
 vide for the remuneration of attorneys appointed to defend in- 
 digent persons who are charged with having committed certain 
 crimes.^ In order to be entitled to compensation, however, the 
 
 County, 2 G. Greene (la.) 473; Dane 20 Clay County v. McGregor, 171 
 
 County v. Smith, 13 Wis. 5S5, 80 Am. Ind. 634, 17 Ann. Cas. 333, 87 N. E. 
 
 Dec. 754. ' 1; Houlc v. Montgomery County, 14 
 
 Recovery Beyond Allowance. — An Ind. App. 662, 41 N. E. 1068; Davis v. 
 
 allowance made by the court does not Linn County, 24 Iowa 508. 
 
 prevent the attorney, in an action 21 See the section following, 
 
 brought for that purpose, from recov- ^ Alahama. — Commissioners Ct. of 
 
 ering from the client the actual value Mobile v. Turner, 45 Ala. 199. 
 
 of the services performed. Cheek v. Colorado. — Washington County ». 
 
 Schwartz, 70 Ind. 339. Murray, 45 Colo. 115, 100 Pac. 588. 
 
 18 Blythe v. State, 4 Ind. 525 ; Webb Indiana. — Baker v. Knox County, 
 V. Baird, 6 Ind. 17; Dane County v. 18 Ind. 170; Gordon v. Dearborn 
 Smith, 13 Wis. 585, 80 Am. Dec. 754. County, 52 Ind. 322; Sage v. State, 
 
 19 Fountain County v. Wood, 35 Ind. 91 Ind. 141 ; Miami County v. Mow- 
 70; Gordon v. Dearborn County, 52 bray, 160 Ind. 10, 66 N. E. 46. 
 
 Ind. 322; Montgomery County v. Iowa. — Ryce v. Mitchell County, 65 
 
 Courtney, 105 Ind. 311, 4 N. E. 896; Iowa 447, 21 N. W. 771; Clark v. Os- 
 
 State V. Miller, 107 Ind. 39, 7 N. E. ceola County, 107 Iowa 502, 78 N. W. 
 
 758; Carpenter v. Dane County, 9 198; State v. Behrens, 109 Iowa 58, 
 
 Wis. 274; Dane County v. Smith, 13 79 N. w. 387; Tomlinson v. Monroe 
 
 Wis. 585, 80 Am. Dec. 754. County, 134 Iowa 608, 112 N. W. 100. 
 
716 
 
 EIGHT TO COMPENSATION. 
 
 [§ 411 
 
 facts must appear to be such as were contemplated by the statute 
 with respect to the grade of the crime charged," and the character 
 
 Maine. — Anonymous, 76 Me. 207. 
 
 Michigan. — Springer v. Board of 
 Auditors, 99 Mich. 513, 58 N. W. 471; 
 People V. Hanifan, 99 Mich. 516, 59 N. 
 W. 611; Withey v. Osceola Circuit 
 Judge, 108 Mich. 168, 65 N. W. 668; 
 De Long v. Muskegon County, 111 
 Mich. 568, 69 N. W. 1115, 3 Detroit 
 Leg. N. 767. 
 
 'Nebraska. — Boone County v. Arm- 
 strong, 23 Neb. 764, 37 N. W. 626; 
 Edmonds v. State, 43 Neb. 742, 62 N. 
 W. 199. 
 
 Nevada. — Washoe County v. Hum- 
 boldt County, 14 Nev. 123. 
 
 New York. — People v. Barone, 161 
 N. Y. 475, 14 N. Y. Crim. 378, 55 N. 
 E. 1091; People v. Ferraro, 162 N. Y. 
 545, 57 N. E. 167; People v. Hamp- 
 artjoomian, 198 N. Y. 515, 91 N. E. 
 286; People v. Heiselbetz, 30 App. 
 Div. 199, 13 N. Y. Crim. 223, 51 N. Y. 
 S. 685; People v. Coler, 44 App. Div. 
 183, 7 N. Y. Ann. Cas. 119, 60 N. Y. S. 
 656; People v. Coler, 61 App. Div. 538, 
 10 N. Y. Ann. Cas. 105, 15 N. Y. 
 Crim. 460, 70 N. Y. S. 639; In re Mon- 
 fort, 78 App. Div. 567, 79 N. Y. S. 765; 
 People V. Montgomery, 101 App. Div. 
 338, 19 N. Y. Crim. 117, 91 N. Y. S. 
 765; People v. McElvaney, 36 Misc. 
 316, 10 N. Y. Ann. Cas. 316, 73 N. Y. 
 S. 639; People v. Di Medicis, 39 Misc. 
 438, 17 N. Y. Crim. 163, 80 N. Y. S. 
 212 ; People V. Foster, 40 Misc. 19, 12 
 N. Y. Ann. Cas. 375, 81 N. Y. S. 212, 
 affirmed 87 App. Div. 193, 84 N. Y. S. 
 97. 
 
 Ohio. — Geanga County Com'rs v. 
 Eanney, 13 Ohio St. 388. 
 
 Wisconsin. — State v. Wentler, 76 
 Wis. 89, 44 N. W. 841, 45 N. W. 816; 
 
 Green Lake County v. Waupaca Coun- 
 ty, 113 Wis. 425, 89 N. W. 549. 
 
 The New York Code of Criminal 
 procedure (§ 308) provides: "If the 
 defendant appear for arraignment 
 without counsel, he must be asked if 
 he desires the aid of counsel, and if 
 he does the court must assign counsel. 
 When services are rendered by coun- 
 sel in pursuance of such assignment 
 in a case where the offense charged in 
 the indictment is punishable by death, 
 or on an appeal from a judgment of 
 death, the court in which the defend- 
 ant is tried or the action or indict- 
 ment is otherwise disposed of, or by 
 which the appeal is finally determined, 
 may allow such counsel his personal 
 and incidental expenses upon a veri- 
 fied statement thereof being filed with 
 the clerk of such court, and also rea- 
 sonable compensation for his services 
 in such court, not exceeding the sum 
 of five hundred dollars, which allow- 
 ance shall be a charge upon the coun- 
 ty in which the indictment in the ac- 
 tion is found, to be paid out of the 
 court fund, upon the certificate of the 
 judge or justice presiding at the trial 
 or otherwise disposing of the indict- 
 ment, or upon the certificate of the 
 appellate court; but no such allowance 
 shall be made unless an affidavit is 
 filed with the clerk of the county by 
 or on behalf of the defendant, show- 
 ing that he is wholly destitute of 
 means." 
 
 * Tomlinson v. Monroe County, 1 34 
 Iowa 608, 112 N. W. 100; Green Lake 
 County V. Waupaca County, 113 Wis. 
 425, 89 N. W. 549. 
 
§§ 412, 413] EIGHT TO COMPENSATION. 717 
 
 of the proceeding ; ' so, also, the statutory requirements must be 
 complied with in all other respects.* The amount of such com- 
 pensation will be considered hereafter.* It has been held that 
 the number of counsel which may be appointed is discretionary 
 with the court in the absence of a controlling provision of the 
 statute in this respect.* 
 
 § 412. In Civil Actions. — Many jurisdictions have provided 
 by statute for allowing poor persons to sue in forma pauperis, 
 and in connection therewith it is usual to empower the court, on 
 the request of such litigants, to appoint counsel to act for them.'' 
 But these statutes do not provide for the compensation of counsel 
 so appointed excepting that, in the event of success, reasonable 
 fees may be allowed from the sum recovered.' The New York 
 code, however, provides that counsel must "act therein without 
 compensation ;" ® and the Indiana statute contains a similar pro- 
 vision.'" Even in the absence of appointment by the court, and 
 irrespective of statutory authority, there is no good reason why 
 counsel cannot voluntarily aid poor persons if he wishes to do 
 so without compensation. The rendition of such services is not 
 only not objectionable, but may be, and undoubtedly often is, 
 praiseworthy.*' 
 
 For Services Rendered to Persons under Disability, or Acting in 
 Representative Capacity. 
 
 § 413. Infants. — The general incapacity of an infant to con- 
 tract affects agreements entered into by him for the rendition of 
 
 8 People V. Prendergast, 67 Misc. "^ See supra, § 86. 
 
 541, 125 N. Y. S. 713. 8 Whelan v. Manhattan R. Co., 86 
 
 * State V. Behrens, 109 Iowa 58, 79 Fed. 219, construing Act of July 20, 
 
 N. W. 387. 1892, § 4 (2 Fed. Stat. Annot. p. 294). 
 
 5 See infra, § 461. 9 N. Y. Code Civ. Pro. § 460. See 
 
 6 People V. Heiaelbetz, 26 Misc. 100, also In re Kelly, 12 Daly (N. Y.) 110; 
 5 N. Y. Ann. Cas. 165, 13 N. Y. Grim. Harris v. Mutual L. Ins. Co., 59 Hun 
 470, 56 N. Y. S. 4, appeal dismissed 625 mem., 13 N. Y. S. 718. 
 
 30 App. Div. 199, 13 N. Y. Crim. 223, 10 Howard County v. Pollard, 153 
 
 51 N. Y. S. 685. See however supra, Ind. 371, 55 N. W. 87. 
 § 87. " See supra, § 393. 
 
718 
 
 EIGHT TO COMPENSATIOM'. 
 
 [§ 413 
 
 professional services.'^ But as to services which have been actual- 
 ly rendered in good faith by an attorney at the request of a minor, 
 and which can reasonably be regarded as being necessary for his 
 relief, protection or support, a recovery may be had.''* Thus 
 when an infant has no guardian, but has rights involved in liti- 
 gation, and a lawyer has espoused the cause of the infant and de- 
 voted his services to the protection of the infant's interests, and 
 as the result of the litigation, an estate has been secured, it is 
 just and proper, and within the principle on which an infant is 
 held liable for necessaries, that reasonable counsel fees should be 
 paid out of the estate so obtained.^* So professional services were 
 deemed to be necessary when rendered in aid of an infant female 
 who had been sediiced,'^ and in defending a minor in a criminal 
 prosecution ; '* but it has been held that services rendered in con- 
 nection with ordinary property rights are not such "necessaries" 
 as will warrant a recovery against an infant client." The bur- 
 
 l^Pyle V. Cravens, 4 Litt. (Ky.) 
 21; Cobbey v. Buchanan, 48 Neb. 39], 
 67 N. W. 176; Phelps v. Worcester, 11 
 N. H. 51. See also infra, § 418. 
 
 13 Connecticut. — Munson v. Wasli- 
 band, 31 Conn. 303, 83 Am. Dec. 151. 
 
 Maryland. — Senseney v. Repp, 94 
 Md. 77, 50 Atl. 416. 
 
 Massachusetts. — Hallett v. Oakes, 
 1 Gush. 296. 
 
 Mississippi. — Epperson v. Nugent, 
 57 Miss. 45, 34 Am. Eep. 434. 
 
 Missouri. — Nagel v. Schilling, 14 
 Mo. App. 576; Houck v. Bridwell, 28 
 Mo. App. 644. 
 
 New Hampshire. — Barker v. Hib- 
 bard, 54 N. H. 539, 20 Am. Eep. 180. 
 
 'New Jersei/.— Colgate v. Colgate, 23 
 N. J. Eq. 372. 
 
 New York. — Petrie v. Williams, 68 
 Hun 589, 23 N. Y. S. 237; Bryant v. 
 Brooklyn Heights R. Co., 64 App. Div. 
 542, 72 N. Y. S. 308. 
 
 South Carolina. — Connor v. Ashley, 
 57 S. C. 305, 35 S. E. 546. 
 
 Texas. — Askey v. Williams, 74 Tex. 
 294, 11 S. W. 1101, 5 L.R.A. 176; Han- 
 Ion V. Wheeler, 45 S. W. 821. 
 
 FermoMt.— Thrall v. Wright, 38 Vt. 
 494. 
 
 1* Epperson v. Nugent, 57 Miss. 45, 
 34 Am. Eep. 434. 
 
 Where the guardian of certain in- 
 fants appeared as an attorney against 
 them, and the relatives of such in- 
 fants, and of others whose interests 
 were the same, employed counsel to 
 defend the interests of the infants, 
 though counsel had been employed by 
 the guardian for his wards, it was 
 held that the estates of the infants 
 were liable for a reascmable attorney's 
 fee, the services having been for the 
 manifest benefit of the infants. Green- 
 lee V. Rowland, 85 Ark. 101, 107 S. 
 W. 193. 
 
 15 Munson v. Washband, 31 Conn. 
 303, 83 Am. Dec. 151. 
 
 16 Barker v. Hibbard, 54 N. H. 539, 
 20 Am. Eep. 160. 
 
 17 Massachusetts. — Mclsaac v. Ad- 
 
§§ 414, 415] 
 
 EIGHT TO COMPENSATION. 
 
 719 
 
 den of proof rests on tlie attorney to show that the services were 
 such as will entitle him to compensation.*' 
 
 § 414. Married Women. — The contract of a married woman 
 entered into with an attorney for professional services rests on 
 the same footing as do other contracts made by her. In the ab- 
 sence of statutory authority, the common law disability remains; 
 but in most states this disability has now been removed by stat- 
 ute, especially in regard to the care and management of her 
 separate estate; and, where such enabling legislation exists, a 
 married woman's contract for professional services is valid and 
 binding.*' 
 
 § 415. Insane Persons. — As a general rule, a contract for 
 professional services entered into between an attorney and a per- 
 son of unsound mind is void ; but where such services were actually 
 performed in good faith, and were necessary, it would seem that 
 a proper recompense therefor may be recovered.^" Where one who 
 
 ams, 190 Mass. 117, 5 Ann. Cas. 729, 
 76 N. E. 654, 112 Am. St. Rep. 321. 
 
 .Nebraska. — Englebert v. Troxell, 40 
 Neb. 195, 58 N. W. 852, 42 Am. St. 
 Rep. 665, 26 L.R.A. 177; Cobbey v. 
 Buchanan, 48 Neb. 391, 67 N. W. 176. 
 
 New Hampshire. — Phelps v. Wor- 
 cester, 11 N. H. 51. See also New 
 Hampshire Mut. F.Ins. Co. v. Noyes, 
 32 N. H. 345. 
 
 Vermont. — Thrall v. Wright, 38 Vt. 
 494. 
 
 Washington. — See Tull v. Nash, 141 
 Fed. 557, 73 C. C. A. 29. 
 
 18 Thrall v. Wright, 38 Vt. 494. 
 And see Warner v. Hoffman, 4 Edw. 
 (N. Y.) 381. 
 
 19 England. — Murray v. Barlee, 3 
 Myl. & K. 209. 
 
 Arkansas. — Oswalt v. Moore, 19 
 Ark. 257. 
 
 Connecticut. — Thresher ». Barry, 
 69 Conn. 470, 37 Atl. 1064. 
 
 Kentucky. — Coleman v. Wooley, 10 
 B. Men. 320; McKee v. Sypert, 6 Ky. 
 L. Rep. 519. 
 
 Michigan. — Woleott v. Patterson, 
 100 Mich. 227, 58 N. W. 1006, 43 Am. 
 St. Rep. 456, 24 L.R.A. 629; Me- 
 Curdy u. Dillon, 135 Mich. 678, 98 
 N. W. 746. 
 
 Mississippi. — Porter v. Haley, 55 
 Miss. 66, 30 Am. Rep. 502; Travis v. 
 Willis, 55 Miss. 566. 
 
 Missotiri. — Crawford V. Love, 10 
 Mo. App. 583. 
 
 New York. — Owen v. Griffin, 2 Hun 
 670. 
 
 Wisconsin. — Leonard v. Rogan, 20 
 Wis. 540. 
 
 20 In Barnesley v. Powell, Ambl. 
 (Eng. ) 102, the solicitor filed a peti- 
 tion, stating that he had expended 
 large sums in prosecuting suits on be- 
 half of B., who was a lunatic, against 
 the defendant. P., and praying that he 
 
720 
 
 EIGHT TO COMPENSATION. 
 
 [§ 416 
 
 is restrained of his liberty against his will, and without legal 
 process, as an insane person, employs counsel to prosecute a writ 
 of habeas corpus on his behalf, for the purpose of investigating 
 the grounds and circumstances of the restraint, the counsel so 
 employed will be entitled to recover a reasonable compensation 
 for his services, provided they be rendered in good faith, and 
 upon due inquiry into the causes of the confinement, and the con- 
 dition of the party be such that an investigation before a judicial 
 tribunal is proper.^ 
 
 § 416. Persons Acting in Representative Capacity. — 
 
 An attorney may, of course, be employed by one acting in a repre- 
 sentative capacity ; ^ and, when so employed, he is as much en- 
 titled to compensation as though he had been retained by a client 
 acting in his own interest. Thus an attorney may be allowed 
 remuneration for services rendered to guardians,' guardians ad 
 
 be allowed to enter up a judgment 
 against the lunatic for such moneys, 
 in order "that thereby he may have 
 a lien on his real estate." Lord 
 Hardwicke thought that the remedy 
 of the petitioner was against the com- 
 mittee of the lunatic who had em- 
 ployed him, but said that the com- 
 mittee had a lien on the lunatic's es- 
 tate, both real and personal, and that 
 the court would assist the solicitor in 
 declaring him to stand in the place of 
 the committee; and a decree was so 
 entered accordingly. Lord Hard- 
 wicke said: "If a solicitor prose- 
 cutes to a decree he has a lien on the 
 estate recovered in the hands of the 
 person recovering for his bills." This 
 language, in so far as it intimated 
 that a solicitor had a lien for his fees 
 on real estate, was repudiated by the 
 House of Lords in Shaw v. Neale, 6 H. 
 L. Cas. (Eng.) 591. 
 
 1 Hallett V. Oakes, 1 Cush. (Mass.) 
 296. 
 
 In Matter of Southwick, 1 Johns. 
 
 Ch. (N. Y.) 22, Chancellor Kent re- 
 fers to the case of Barnesley v. Pow- 
 ell, Ambl. (Eng.) 102, and to the 
 similar case of Ex p. Price, 2 Ves. 
 (Eng.) 407, and treats them as mere- 
 ly subrogating the solicitor to the 
 rights of the committee, adding that 
 the remedy of the solicitor is ordi- 
 narily, in such cases, in an action at 
 law. 
 
 An action at law will not lie 
 against the committee of a lunatic to 
 recover compensation for professional 
 services rendered by the plaintiff as 
 an attorney in conducting the pro- 
 ceedings in lunacy; the court that has 
 the final settlement of the committee's 
 accounts has the exclusive control of 
 such expenditures. But the estate in 
 the hands of the committee is liable 
 for such services. Wier v. Myers, 34 
 Pa. St. 377. 
 
 8 See supra, § 136. 
 
 8 Fearns v. Young, 1 Ves. Jr. 
 (Eng.) 184; Bignol v. Bignol, 11 Ves. 
 Jr. (Eng.) 328; Crump v. Baker, 18 
 
416] 
 
 EIGHT TO COMPENSATION. 
 
 721 
 
 litem* executors and administrators/ assignees for creditors,® re- 
 ceivers/ trustees/ or anyone acting in any other such representa- 
 tive capacity. Whether the persons represented or their estates 
 shall be bound by agreements entered into by their representatives 
 for counsel fees, and to what extent, usually presents a question 
 of local law. Generally, however, the attorney will be entitled 
 to reasonable compensation to be determined, when judicial de- 
 termination is necessary, by the rules obtaining in other cases.^ 
 
 Ves. Jr. (Eng.) 285; Stewart v. 
 Hoare, 2 Bro. C. C. (Eng.) 663; Hunt 
 V. McClanahan, 1 Heisk. (Tenn.) 
 503; Yourie v. Nelson, 1 Tenn. Cli. 
 615. 
 
 Presumption of Employment. — In 
 Hilliard v. Carr, 6 Ala. 557, it was 
 held that, in the absence of proof to 
 the contrary, it will be presumed that 
 an attorney appearing for an infant 
 was employed by the infant's guard- 
 ian or next friend. 
 
 4 Jones V. Yore, 142 Mo. 38, 43 S. 
 W. 384; Bowling v. Scales, 1 Tenn. 
 Ch. 618. 
 
 Where, in a suit in chancery in- 
 volving the real property of infants, 
 the chancellor, on account of the fact 
 that the statutory guardian of the in- 
 fants claims an adverse interest in the 
 property, refuses to allow him to de- 
 fend for the Infants, and appoints a 
 Attys. at L. Vol. II.— 46. 
 
 guardian ad litem for that purpose, 
 who employs attorneys to represent 
 him, and the latter conduct the litiga- 
 tion for the infants to a successful 
 conclusion, the infants are liable for 
 reasonable attorney's fees. Owens v. 
 Gunther, 75 Ark. 37, 5 Ann. Cas. 130, 
 86 S. W. 851. 
 
 6 Brown v. Quinton, 80 Kan. 44, 18 
 Ann. Cas. 290, 102 Pac. 242, 25 L.K.A. 
 (N.S.) 71. 
 
 6 In re Sehaller, 10 Daly (N. Y.) 
 57. 
 
 7 Farmers' Loan & Trust Co. v. 
 Mann, 4 Kobt. (N. Y.) 356. 
 
 8 As to the compensation of at- 
 torneys for trustees in bankruptcy, 
 see infra, § 62. 
 
 9 In re Becher, 5 Pa. Co. Ct. 115. 
 As to the amount of compensation 
 
 generally, see infra, § 439 et seq. 
 
CHAPTEE XX. 
 
 CONTRACTS FOR COMPENSATION. 
 
 In General. 
 
 417. Eight to Contract for Compensation. 
 
 418. Client's Capacity to Contract. 
 
 419. Construction of Contract. 
 
 420. Assignment of Contract. 
 
 Contracts for Contingent Fees. 
 
 421. Validity of Contracts for Contingent Fees Generally. 
 
 422. Contract for Part of Land in Litigation. 
 
 423. Happening of Contingency. 
 
 424. Manner of Effecting Contingency. 
 
 425. Creation of Equitable Assignment. 
 
 426. Creation of Interest in Subject-Matter of Litigation. 
 
 427. Excessive Fees. 
 
 Matters Affecting Validity of Contracts Qenerally, 
 
 428. Fairness. 
 
 429. Advice and Disclosure of Fact by Attorney. 
 
 430. Contract Must be Understood by Client. 
 
 431. Unconscionable Contracts. 
 
 432. Time of Making Contract as Affecting Its Validity. 
 
 Contracts in Contravention of Public Policy. 
 
 433. In General. 
 
 434. As Dependent on Nature of Services Rendered. 
 
 435. Contracts Restricting Settlement by Client. 
 
 436. Solicitation of Business. 
 
 437. Contracts Affecting Marital Relations. 
 
 Recovery on Quantum Meruit for Services Performed under Void 
 or Voidable Contracts. 
 
 438. Generally. 
 
 722 
 
417] 
 
 CONTEACTS FOB COMPENSATION. 
 
 723 
 
 In General. 
 
 § 417. Right to Contract for Compensation. — It is well 
 settled throughout the United States that an attorney may con- 
 tract with his client for the rendition of professional services, and 
 that such contract nday fix the amount of the attorney's compen- 
 sation therefor. In many jurisdictions this rule has been declared 
 by statute. Indeed, the right of attorneys to compensation de- 
 pends, in all cases, on a contract either express or implied.' A 
 
 1 United States. — Wylie v. Coxe, 15 
 How. 415, 14 U. S. (L. ed.) 753; 
 Stanton v. Embrey, 93 U. S. 548, 23 
 U. S. (L. ed.) 983; Orr v. Brown, 69 
 Fed. 216, 30 U. S. App. 405, 16 C. C. 
 A. 197; Tuttle v. Claflin, 88 Fed. 
 122, 59 U. S. App. 602, 31 C. C. A. 
 419; IngersoU v. Coram, 127 Fed. 418. 
 
 Alabama. — Kidd v. Williams, 132 
 Ala. 140, 31 So. 458, 56 L.R.A. 879. 
 
 California. — Goad v. Hart, 128 Cal. 
 197, 60 Pae. 761, 964; Reynolds v. 
 Sorosis Fruit Co., 133 Cal. 625, 66 
 Pac. 21. 
 
 District of Columbia. — Stanton v. 
 Haakin, 1 MacArthur 558; Whiting 
 V. Davidge, 23 App. Cas. 156. 
 
 Illinois. — Morrison v. Smith, 130 
 111. 304, 23 N. E. 241; Franklin 
 County V. Layman, 145 111. 138, 33 
 N. E. 1094; Dyrenforth v. Palmer, 
 etc., Co., 240 111. 25, 88 N. E. 290. 
 
 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. E. 797; Cordes 
 V. Bailey, 39 Ind. App. 83, 78 N. E. 
 678, 1060. 
 
 Kentucky. — Cabell v. Cabell, 1 
 Mete. 333; Patterson v. Fleenor, 89 
 S. W. 705, 28 Ky. L. Rep. 582. 
 
 Louisiana. — McElrath v. Dupuy, 2 
 La. Ann. 521. 
 
 Maryland. — Neighbors v. Maulsby, 
 41 Md. 478; Etzel v. Duncan, 112 Md. 
 346, 76 Atl. 493. 
 
 Massachusetts. — Paul v. Wilbur, 
 
 189 Mass. 48, 75 N. E. 63; Bar Assoc. 
 V. Hale, 197 Mass. 423, 83 N. E. 885. 
 
 Michigan. — Detroit v. Whittemore, 
 27 Mich. 280; Dawson v. Peterson, 
 no Mich. 431, 68 N. W. 246; Cav- 
 aiiaugh v. Robinson, 138 Mich. 554i 
 101 N. W. 824. 
 
 Minnesota. — Reals v. Wagener, 47 
 Minn. 489, 50 N. W. 535. 
 
 Mississippi. — Humphreys v. Mc- 
 Lachlan, 87 Miss. 532, 40 So. 151. 
 
 Missouri. — Cosgrove v. Burton, 104 
 Mo. App. 698, 78 S. W. 667; Bond 
 V. Sandford, 134 Mo. App. 477, 114 
 S. W. 570; Beagles v. Robertson, 135 
 Mo. App. 306, 115 S. W. 1042. 
 
 New Jersey. — Schomp v. Schenck, 
 40 N. J. L. 195, 29 Am. Rep. 219; 
 Strong V. Mundy, 52 N. J. Eq. 833, 
 31 Atl. 611; Holloway V. Appelget, 
 55 N. J. Eq. 583, 40 Atl. 27, 62 Am. 
 St. Rep. 827. 
 
 New York. — Adams v. Stevens, 26 
 Wend. 451; Wallis v. Loubat, 2 Den. 
 207; Fitch v. Gardenier, 2 Keyes 
 516; Deering v. Schreyer, 171 N. Y. 
 451, 64 N. E. 179, modifying 58 App. 
 Div. 322, 68 N. Y. S. 1015; Clifford 
 V. Braun, 71 App. Div. 432, 75 N. 
 Y. S. 856; Bennett v. Donovan, 83 
 App. Div. 95, 82 N. Y. S. 506; Burke 
 V. Baker, 111 App. Div. 422, 97 N. 
 Y. S. 768, affirmed 188 IST. Y. 561, 80 
 N. E. 1033; Weeks v. Gattell, 125 
 App. Div. 402, 109 N. Y. S. 977; 
 
724 
 
 COTTTRACTS FOE COMPENSATIOIT. 
 
 [§ 417 
 
 similar rule prevails in at least some of the Canadian provinces.* 
 The English law, however, prohibits counsel from entering into 
 such contracts with their clients.* 
 
 An express contract for compensation when fairly and honestly 
 entered into,* for a lawful purpose,® will control as between 
 parties.^ 
 
 McCoy V. Gas Engine, etc., Co., 135 
 App. Div. 771, 119 N. Y. S. 864; 
 Flannery v. Geiger, 46 Misc. 619, 92 
 N. y. S. 785. 
 
 Oklahoma. — Mellow v. Fulton, 82 
 Okla. 636, 98 Pac. 911, 19 L.R.A. 
 (N.S.) 960. 
 
 Oregon. — Ladd v. Ferguson, 9 Ore. 
 180; Hamilton v. Holmes, 48 Ore. 
 453, 87 Pac. 154. 
 
 Pennsylvania. — McGee's Estate, 205 
 Pa. St. 590, 55 Atl. 776. 
 
 Tennessee. — Planters' Bank v. 
 Hornberger, 4 Coldw. 531; Pate v. 
 Maples, 43 S. W. 740. 
 
 Tesros.— Croft v. Hicks, 26 Tex. 
 383; Bonner v. Green, 6 Tex. Civ. 
 App. 96, 24 S. W. 835; American 
 Cotton Co. V. Simmons, 39 Tex. Civ. 
 App. 189, 87 S. W. 842; Hames v. 
 Stroud, 51 Tex. Civ. App. 562, 112 
 S. W. 775. 
 
 Utah. — Croco v. Oregon, etc., R. 
 Co., 18 Utah 321, 54 Pac. 985 ; Potter 
 t'. Ajax Min. Co., 22 Utah 273, 61 
 Pac. 999. 
 
 Virginia. — Yates v. Robertson, 80 
 Va. 475; Thomas v. Turner, 87 Va. 
 1, 12 S. E. 149, 668. 
 
 Washington. — Dennis v. Seattle 
 First Nat. Bank, 33 Wash. 161, 73 
 Pac. 1125; Carson v. Fogg, 34 Wash. 
 448, 76 Pac. 112; Cain v. Moore, 54 
 Wash. 627, 103 Pac. 1130. 
 
 West Virginia. — Watts v. West 
 Virginia So. R. Co., 48 W. Va. 262, 
 37 S. E. 700; Camden v. McCoy, 48 
 W. Va. 377, 37 S. E. 637; Kecnan 
 
 V. Scott, 64 W. Va. 137, 61 S. E. 
 806. 
 
 Wisconsin. — Vilas v. Bundy, 106 
 Wis. 168, 81 N. W. 812. 
 
 2 See supra, § 403. See also Reg. 
 V. Doutre, 9 App. Cas. (Eng.) 745; 
 Paradis v. Bosse, 21 Can. Sup. Ct. 
 419 (both of which cases were de- 
 cided under the laws of the province 
 of Quebec.) 
 
 3 See supra, § 401. 
 
 4 See infra, § 428. 
 
 5 See infra, § 433. 
 
 6 See infra, § 439. 
 
 Right of Business Associate to 
 Bind Attorney by Contract for Fees. 
 —In Leavitt v. Chase, 129 N. Y. 660, 
 29 N. E. 831, affirming 59 Super. Ct. 
 230, 13 N. Y. S. 883, the plaintiff, a 
 lawyer, was jointly interested witli 
 H., who was not a lawyer, in making 
 certain collections for the defendant; 
 he also conducted various matters 
 of litigation for the defendant which 
 were not connected with the collec- 
 tions. In an action by him to re- 
 cover for professional services, the 
 defendant claimed that under an ar- 
 rangement with H. it had been agreed 
 that the plaintiff's fees were to be 
 contingent upon a recovery. It was 
 held that the fact that the plaintiff 
 and H. were jointly interested in 
 making the collections did not author- 
 ize the latter to bind the plaintiff 
 by contract for his professional serv- 
 ices in other matters; and, it having 
 been found that H. had no authority 
 
§§ 418, 419] CONTRACTS FOE COMPENSATION. 725 
 
 § 418. Client's Capacity to Contract. — Under the rules ap- 
 plicable to contracts generally, a contract for professional services 
 entered into between an attorney and one who was legally incapable 
 of making such a contract, is void, and no recovery can be had 
 thereon, though in some instances recovery may be. had for 
 beneficial services actually performed in good faith under such a 
 contract: not on the contract, however, but by way of quantum 
 meruit.'' Thus a contract with an administrator is not binding 
 on the estate, as the compensation of an administrator's attorney 
 is a matter for the determination of the court.' An act of Con- 
 gress provides that no agreement shall be made by any person 
 with any Indian tribe, or individual Indian, in consideration of 
 services for said Indians in reference to lands, moneys, etc., under 
 treaties or laws of the United States, etc., unless in writing, and, 
 among other requisites, approved by the Secretary of the Interior 
 and the Commissioner of Indian Affairs ; ^ and that no assign- 
 ment of any such contract, or of any part thereof, shall be valid 
 unless the names of the assignees, and their residences and oc- 
 cupations, are entered in writing thereon, together with the in- 
 dorsed consent of the Secretary of the Interior and the Commis- 
 sioner of Indian Affairs." 
 
 § 419. Construction of Contract. — The construction of con- 
 tracts for compensation between attorney and client does not differ 
 materially from the construction of contracts between other per- 
 sons who sustain a fiduciary relation toward each other; thus the 
 court will, if possible, adopt such construction as will give effect 
 to the entire instrument.*' But if the contract is ambiguous it 
 
 to make the contract and that it St. Ann. 370. See also Gordon v. 
 
 was not subsequently ratified by the Gwydir, 34 App. Cas. (D. C.) 508. 
 
 plaintiff, he was entitled to recover. As to the apportionment of fees 
 
 7 See supra, §§ 413-415. See also under contracts with Indians, see in- 
 Lacey v. Willson, 83 Ind. 570. fra, § 469. 
 
 8 Rickel V. Chicago, R. I. & P. E. " Pratt v. Kerns, 123 111. App. 86 ; 
 Co., 112 la. 148, 83 N. W. 957. Braekett v. Ostrander, 126 App. Div. 
 
 9U. S. Rev. Stat. § 2103; 3 Fed. 529, 110 N. Y. S. 779; Fisher v. 
 
 St. Ann. 367. See also Gordon v. Mylius, 42 W. Va. 638, 26 S. E. 309. 
 
 Gwydir, 34 App. Cas. (D. C.) 508. "It is a, settled and salutary prin- 
 
 10 U. S. Rev. Stat. § 2106; 3 Fed. ciple that courts will follow the con- 
 
726 
 
 CONTEACTS FOE COMPENSATION, 
 
 t§ 419 
 
 will be construed favorably to the client, ^^ even though he had the 
 benefit of independent advice thereon. '' Thus where the client 
 was not able to read the contract, and was not informed of its 
 provisions otherwise than by the attorney's explanations, the client 
 is entitled to as favorable a construction as the language will per- 
 mit.^* Indeed, it has been well said that an attorney should have 
 his agreements with clients so plain as not to require construc- 
 tion.'* The courts will scrutinize Avith great care contracts be- 
 tween attorneys and clients, it being necessary to show that there 
 was no fraud or mistake, and that the transaction was perfectly 
 understood by the weaker party.*^ 
 
 When the terms and language of the contract are ascertained, 
 and it contains no obscure technical phrases or latent ambiguities 
 which render its meaning uncertain or doubtful, its interpretation 
 is for the court ; '' but where there is ambiguity, practical construc- 
 tion and parol explanation are admissible as in other cases.'' 
 
 A contract for professional services between a citizen add a 
 
 struction that the parties themselves, 
 by their acts, have put upon their 
 own contracts.'' Louisville, etc., R. 
 Co., V. Reynolds, 118 Ind. 170, 20 
 N. E. 711. 
 
 In the construction of a contract 
 between an attorney and client, the 
 rule of law which casts upon the at- 
 torney the burden to show that the 
 contract was made with the full 
 understanding of the situation at the 
 time does not apply, being limited 
 to the enforcement of such contract. 
 Willoughby v. Mackall, 1 App. Gas. 
 (D. C.) 411, 417. 
 
 12 Funk V. Mohr, 185 111. 395, 57 
 N. E. 2, affirming 85 111. App. 97; 
 Burling v. King, 46 How. Pr. (N. Y.) 
 452; Hitehings V. Van Brunt, 5 Abb. 
 Pr. N. s. (N. Y.) 272; Mcllvaine v. 
 Steinson, 90 App. Div. 77, 85 K. Y. 
 S. 889; Brackett v. Ostrander, 126 
 App. Div. 529, 110 N. Y. S. 779; 
 Butts V. Carey, 143 App. Div. 356, 
 128 N. Y. S. 533; Samuels v. Simp- 
 
 son, 144 App. Div. 466, 129 N. Y. S. 
 534 ; Matter of Hawke, 148 App. Div. 
 326, 133 N. Y. S. 23, affirmed 204 N. 
 Y. 671, !)8 N. E. 1097; McCoy r. Gas 
 Engine & Power Co., 152 App. Div. 
 642, 137 N. Y. S. 591. 
 
 13 Samuels v. Simpson, 144 App. 
 Div. 466, 129 N. Y. S. 534. 
 
 14Harkavy v. Zisman, 96 N. Y. S. 
 214. 
 
 15 Per Miller, J., in Samuels v. 
 Simpson, 144 App. Div. 466, 129 N. 
 Y. S. 534. 
 
 16 Eysaman v. Nelson, 79 Misc. 304, 
 140 N. Y. S. 183. 
 
 "Serat v. Smith, 61 Hun 36, 15 
 N. Y. S. 875 ; Fulton v. Western Stove 
 Mfg. Co., (Tex.) 45 S. W. 1035; Cain 
 V. Moore, 54 Wash. 627, 103 Pac. 
 1130. 
 
 18 Russell V. Young, 94 Fed. 45, 36 
 C. C. A. 71; Funk v. Mohr, 185 111. 
 395, 57 N. E. 2, affirming 85 111. App. 
 97 ; Smidt r. Dessar, 13 Misc. 254. 34 
 N. Y. S. 158, 68 N. Y. St. Rep. 205. 
 
§§ 420, 421] CONTEACTS FOE COMPENSATION. 727 
 
 foreign attorney will, in the absence of a special agreement as to 
 compensation, be governed by the law of the country in which the 
 contract was made and intended to be performed.*' 
 
 The fairness, and such other matters as affect the validity of 
 the contract, will be considered later.*" 
 
 § 420. Assignment of Contract. — An attorney who has en- 
 tered into a contract for the rendition of professional services can- 
 not, while the contract remains executory, assign it to another 
 attorney without the consent of the client. The reason of this rule 
 is that the contract is, in its nature, one which involves the client's 
 undoubted right to select those who shall serve him as counsel,* 
 and that, under the rule heretofore stated, an attorney has no im- 
 plied power to delegate his authority to act for his client.* But 
 where the contract has been fully performed on the part of the 
 attorney, and all that remains for the client to do is to pay the 
 agreed compensation, the contract may be assigned merely as the 
 evidence of the indebtedness; and, in such case, the assignee can 
 recover from the client,' though a part of an entire and indivisible 
 claim cannot be so assigned.* So, also, the unauthorized assign- 
 ment of the contract may be ratified by the client, and in this way 
 made effective.^ 
 
 Contracts for Contingent Fees. 
 
 § 421. Validity of Contracts for Contingent Fees Gener- 
 ally. — Under the general rule prevailing in the United States it 
 is lawful for an attorney to enter into a contract with his client 
 for the rendition of professional services whereby the compensa- 
 tion of the attorney is made contingent on success, and payable 
 from the proceeds of the litigation, or other legal business, in- 
 
 W Dawson v. Peterson, 110 Mich. 8 Taylor v. Black Diamond Coal 
 
 431, 68 N. W. 246. Mln. Co., 86 Cal. 589, 25 Pac. 51; 
 
 20 See infra, § 428 et seq. Hilton v. Crooker, 30 Neb. 707, 47 
 
 1 Taylor v. Black Diamond Coal N. W. 3. 
 
 Min. Co., 86 Cal. 589, 25 Pac. 51; 4Mulford v. Hodges, 10 Hun (N. 
 
 Hilton V. Crooker, 30 Neb. 707, 47 Y.) 79. 
 
 N. W. 3. 6 See supra, §§ 211-214. 
 
 2 See supra, § 210. 
 
T28 
 
 CONTRACTS FOE COMPENSATION. 
 
 [§ 421 
 
 trusted to the attorney's care.^ But it is essential that such con- 
 
 6 United States. — Wylie »;. Coxe, 15 
 How. 415, 14 U. S. (L. ed.) 753; 
 Wright V. Tebbitts, 91 U. S. 252, 23 
 U. S. (L. ed.) 320; Stanton v. Em- 
 brey, 93 U. S. 548, 23 U. S. (L. ed.) 
 983 ; McPherson v. Cox, 96 U. S. 404, 
 24 U. S. (L. ed.) 746; Taylor v. 
 Bemiss, 110 U. S. 42, 3 S. Ct. 441, 
 28 U. S. (L. ed.) 64; Ball v. Hal- 
 sell, 161 U. S. 80, 16 S. Ct. 554, 40 
 U. S. (L. ed.) 622; Ex p. I'litt, 2 
 Wall. Jr. (C. C.) 453, 19 Fed. Cas. 
 No. 11,228; Fletcher j;. McArthur, 
 117 Fed. 393, 54 C. C. A. 567; Bar- 
 cus V. Sherwood, 136 Fed. 184, 69 
 C. C. A. 200, affirming 130 Fed. 364; 
 Phillips V. Louisville, etc., R. Co., 
 153 Fed. 795; Cain v. Hockensmith, 
 etc., Co., 157 Fed. 992; Globe Works 
 V. V. S., 45 Ct. CI. 497. 
 
 Arkansas. — Lytle v. State, 17 Ark. 
 608; Brodie v. Watkins, 33 Ark. 
 545, 34 Am. Rep. 49; Jacks v. 
 Thweatt, 39 Ark. 340; Davis v. Web- 
 ber, 66 Ark. 100, 49 S. W. 822, 74 
 Am. St. Rep. 81, 45 L.R.A. 196. 
 
 Colorado. — Hazeltine v. Brockway, 
 26 Colo. 291, 57 Pac. 1077. 
 
 District of Columbia. — Stanton v. 
 Haskin, 1 MacArthur 558. 
 
 Georgia. — ^Moses v. Bagley, 55 Ga. 
 283. 
 
 Illinois. — Newkirk v. Cone, 18 111. 
 449; Thompson V. Reynolds, 73 111. 
 11; West Chicago Park Com'rs v. 
 Coleman, 108 111. 591 ; Geer v. Frank, 
 179 111. 570, 53 N. E. 965, 45 L.R.A. 
 110; Robinson v. Sharp, 201 111. 86, 
 66 N. E. 299; Dunne v. Herrick, 37 
 111. App. 182; Neal v. Franklin Coun- 
 ty, 43 111. App. 267. 
 
 Indiana. — Whinery v. Brown, 36 
 Ind. App. 276, 75 N. E. 605. 
 
 Iowa. — McDonald v. Chicago, etc.. 
 
 R. Co., 29 la. 174; Jewel v. Neidy, 
 61 la. 299, 16 N. W. 141; Larned v. 
 Dubuque, 86 la. 166, 53 N. W. 105; 
 Dunham v. Bently, 103 la. 136, 72 
 N. W. 437; Rickel v. Chicago, etc., 
 R. Co., 112 la. 148, 83 N. W.. 957; 
 Graham v. Dubuque, etc.. Works, 138 
 la. 456, 114 N. W. 619, 15 L.R.A. 
 (N.S.) 729. 
 
 Kansas. — Stevens v. Sheriff, 76 
 Kan. 124, 90 Pac. 799, 11 L.R.A. 
 (N.S.) 1153. 
 
 Louisiana. — Clay v. Ballard, 9 
 Rob. 308, 41 Am. Dec. 328; Andriac 
 V. Richardson, 125 La. 883, 51 So. 
 1024 (decided in accordance with act 
 of 1906), practically overruling Ma- 
 zureau v. Morgan, 25 La. Ann. 281 
 (decided under act of 1808). 
 
 Maryland. — Wheeler v. Harrison, 
 94 Md. 147, 50 Atl. 523. 
 
 MichigoM. — Wildey v. Crane, 63 
 Mich. 720, 30 N. W. 327; Millard v. 
 Jordan, 76 Mich. 131, 42 N. W. 1085; 
 Denman v. Johnston, 85 Mich. 389, 
 48 N. W. 565. 
 
 Minnesota. — Canty v. Latterner, 31 
 Minn. 239, 17 N. W. 385; Moyer v. 
 Cantieny, 41 Minn. 242, 42 N. W. 
 1060; Gammons v. Johnson, 76 Minn. 
 76, 78 N. W. 1035. 
 
 Mississippi. — Humphreys v. Mc- 
 Lachlan, 87 Miss. 532, 40 So. 151. 
 
 Missouri. — Lipscomb v. Adams, 193 
 Mo. 530, 91 S. W. 1046, 112 Am. St. 
 Rep. 500; Curtis v. Metropolitan St. 
 R. Co., 125 Mo. App. 369, 102 S. W. 
 62; Beagles v. Robertson, 135 Mo. 
 App. 306, 115 S. W. 1042; Taylor v. 
 Perkins, 157 S. W. 122. 
 
 Nebraska. — Stroemer v. Van Ors- 
 del, 74 Neb. 132, 103 N. W. 1053, 
 121 Am. St. Rep. 713, 4 L.R.A.(X.S.) 
 212, affirmed on rehearing 74 Neb. 
 
§ 421] 
 
 CONTEACTS FOE COMPENSATION. 
 
 729 
 
 143, 107 N. W. 325, 121 Am. St. Rep. 
 723, 4 L.R.A.(N.S) 218. 
 
 New Jersey. — Terney v. Wilson, 45 
 N. J. L. 282; Hassell v. Van Houten, 
 39 N. J. Eq. 105. 
 
 New York.- — Brown v. New York, 
 
 9 Hun 595; Browne v. West, 9 App. 
 Div. 135, 41 N. Y. S. 146; More- 
 house V. Brooklyn Heights R. Co., 
 123 App. Div. 680, 108 N. Y. S. 152, 
 affirmed 195 N. Y. 537, 88 N. E. 
 1126; In re Flannery, 150 App. Div. 
 369, 135 N. Y. S. 612; Wilde v. Joel, 
 6 Duer 671, 15 How. Pr. 329; Fox 
 V. Fox, 24 How. Pr. 409; Fiteh v. 
 Gardenier, 2 Keyes 516; Fogerty v. 
 Jordan, 2 Robt. 319; Easton v. Smith, 
 1 E. D. Smith 318; Rooney v. Second 
 Ave. R. Co., 18 N. Y. 368 ; Hitchings 
 V. Van Brunt, 38 N. Y. 335, 5 Abb. 
 Pr. N. S. 272; Sussdorff v. Schmidt, 
 55 N. Y. 320; Coughlin v. New York 
 Cent., etc., R. Co., 71 N. Y. 443, 27 
 Am. Rep. 75, reversing 8 Hun 136; 
 Wetmore v. Hegeman, 88 N. Y. 69, 
 affirming 12 N. Y. Wkly. Dig. 403; 
 Fowler v. Callan, 102 N. Y. 395, 7 
 N. E. 169, reversing 4 Civ. Pro. 413, 
 12 Daly 263; Matter of Fitzsimmons, 
 174 N. Y. 15, 66 N. E. 554. 
 
 North Dakota. — Woods v. Walsh, 7 
 N. D. 376, 75 N. W. 767. 
 
 Ohio. — Weakly v. Hall, 13 Ohio 
 167, 42 Am. Dec. 194; Stewart v. 
 Welch, 41 Ohio St. 483; Reece v. 
 Kyle, 49 Ohio St. 475, 31 N. E. 747, 
 
 16 L.R.A. 723; Hudson v. Sanders, 
 
 10 Ohio Cir. Dec. 342, 19 Ohio Cir. 
 Ct. 615. 
 
 Oregon. — Dahms v. Sears, 13 Ore. 
 48, 11 Pac. 891; Hamilton v. Holmes, 
 48 Ore. 462, 87 Pac. 154; Stearns v. 
 Wollenberg, 51 Ore. 88, 92 Pac. 1079. 
 
 Pennsylvania. — Boulden v. Hebel, 
 
 17 S. & E. 312; Strohecker v. Hoff- 
 man, 19 Pa. St. 227; Patten v. Wil- 
 
 son, 34 Pa. St. 299; Chester County 
 V. Barber, 97 Pa. St. 455; Perry v. 
 Dicken, 105 Pa. St. 83, 51 Am. Rep. 
 181; Mumma's Appeal, 127 Pa. St. 
 474, 18 Atl. 6; Fellows v. Smith, 
 190 Pa. St. 301, 42 Atl. 678; Wil- 
 liams V. Philadelphia, 208 Pa. St. 282, 
 57 Atl. 578; Fenn v. McCarrell, 208 
 Pa. St. 615, 57 Atl. 1108; Diokerson 
 V. Pyle, 4 Phila. 259, 18 Leg. Int. 
 37; Filon's Estate, 7 Pa. Dist. Ct. 
 316. 
 
 Texas. — Wheeler v. Riviere, 49 S. 
 W. 697; Lynch v. Munson, 59 S. W. 
 603. 
 
 Utah. — Crooo v. Oregon, etc., R. 
 Co., 18 Utah 311, 54 Pac. 985, 44 
 L.R.A. 285. 
 
 Vermont. — In re Aldrich, 86 Atl. 
 801. 
 
 Virginia. — Nickels v. Kane, 82 Va. 
 309; McDonald v. Logan, 34 S. E. 
 490. 
 
 Washington. — Schultheis v. Nash, 
 27 Wash. 250, 67 Pac. 707. 
 
 West Virginia. — Polsley v. Ander- 
 son, 7 W. Va. 202, 23 Am. Rep. 613; 
 Graham v. Graham, 10 W. Va. 355; 
 Anderson v. Caraway, 27 W. Va. 385; 
 Lewis V. Broun, 36 W. Va. 1, 14 S. 
 E. 444; Crumlish v. Shenandoah, etc., 
 E. Co., 40 W. Va. 627, 22 S. E. 90; 
 Fisher v. Mylius, 42 W. Va. 638, 26 
 S. E. 309; Door v. Camden, 55 W. 
 Va. 226, 46 S. E. 1014, 65 L.R.A. 
 348. 
 
 Wisconsin. — Ryan u. Martin, 16 
 Wis. 59; AUard v. Lamirande, 29 
 Wis. 502; Kusterer v. Beaver Dam, 
 56 Wis. 475, 14 N. W. 617, 43 Am. 
 Rep. 725. 
 
 Contra in England. — Hilton v. 
 Woods, L. R. 4 Eq. 432, 36 L. J. Ch. 
 491, 16 L. T. N. S. 736. See also In 
 re Masters, Hurl. & W. 348; Strange 
 V. Brennan, 15 Sim. 346, affirmed in 
 
730 CONTEACTS FOE COMPENSATION. [§ 421 
 
 tracts are fairly and honestly entered into/ and free from the 
 taint of illegality.' 
 
 The old notion that such contracts were champertous, prevails 
 no longer ; ^ although in some jurisdictions the contract, to avoid 
 being champertous, must show the creation of an indebtedness by 
 the client for the counsel fees thus incurred, even though he loses 
 his suit, or, rather, it must not appear that, in the event of los- 
 ing the suit, the attorney's services are to be gratuitous ; " nor 
 must it appear that the attorney agrees to pay the costs and ex- 
 penses of the litigation undertaken by him ; *^ but where such 
 requirements are complied with, contingent fees may be contracted 
 for in these jurisdictions as well as elsewhere.'^ 
 
 In the early days it was thought that to contract for a contin- 
 gent fee was unlawful, but that idea has long since been discarded 
 in this country. Such contracts are as much for the benefit of the 
 client as for the attorney, because if the client has a meritorious 
 cause of action, but no means with which to pay for legal services, 
 unless he can lawfully contract for a contingent fee to be paid 
 out of the proceeds of the litigation, he will necessarily be de- 
 prived of his remedy — a result which the law does not desire, and 
 
 2 Coop. t. Cot. ], 15 L. J. Ch. 389, ney, 75 Ala. 552; German v. Brown, 
 
 10 Jur. 649; Earle v. Hopwood, 9 145 Ala. 364, 39 So. 742; Troy v. 
 
 C. B. N. S. 566, 99 E. C. L. 566, 30 Hall, 157 Ala. 592, 47 So. 1035. 
 
 L. J. C. PI. 217, 7 Jur. N. S. 775, 3 Indiana.— Hvo^ v. Lewis, 31 Ind. 
 
 L. T. N. S. 670, 9 W. E. 272. And App. 178, 66 N. E. 490; Whinnery v. 
 
 see supra, § 401. BroAvn, 36 Ind. App. 276, 75 N. E. 
 
 TSee infra, § 428. 605. 
 
 8 See infra, § 433. Kentucky. — Wilhite v. Roberts, 4 
 Attorney also Witness. — A con- Dana 172; Evans v. Bell, 6 Dana 
 
 tract by an attorney to render serv- 479; Leslie v. York, 112 Ky. 712, 66 
 
 ices for a contingent fee may be S. W. 751; Schmitz v. South Cov- 
 
 valid, although it is understood that ington, etc., R. Co., 131 Ky. 207, 114 
 
 the attorney will be an indispensable S. W. 1197, 22 L.R.A. (N.S.) 776. 
 witness on the trial of his client's Massachusetts. — Scott v. Harmon, 
 
 case. Perry v. Dicken, 105 Pa. St. 109 Mass. 237, 12 Am. Rep. 685; 
 
 83, 51 Am. Rep. 181.. Blaisdell v. Ahern, 144 Mass. 393, 11 
 
 9 See supra, § 386. N. E. 681, 59 Am. Rep. 99; Hadlock 
 
 10 See supra, § 388. v. Brooks, 178 Mass. 425, 59 N. E. 
 
 11 See stfpm, § 389. 1009. 
 
 12 AJaJamo.— Ware v. Russell, 70 A'e6j-as7co.— See Omaha, etc., R. Co. 
 Ala. 174, 45 Am. Rep. 82; Price r. Car- v. Brady, 39 Neb. 49, 57 N. W. 767. 
 
§ 422] OONTEACTS FOE COMPENSATION. 731 
 
 which certainly is inconsistent with its tenets.*' Of course, the 
 lawyer could always render assistance to indigent persons without 
 fear of offending against the law of champerty and maintenance, 
 providing he did so gratuitously; ** but now that the practice of 
 law is recognized to be an occupation which is followed not alone 
 for honor, but as well for profit, the reason of the old rule falls, 
 and the rule necessarily falls with it. So, it may well be that one 
 who is not indigent may wisely submit his business to counsel on 
 the basis of a contingent fee, and there is no good reason for con- 
 sidering the transaction illegal, especially in view of the fact that 
 such contracts, as well as all other dealings between attorney and 
 client, are always subject to scrutiny by the court.*' 
 
 § 422. Contract for Part of Land in Litigation. — Where 
 an attorney is retained in a suit brought for the recovery of land, 
 whether for the prosecution or defense thereof, it is now well 
 settled that he may lawfully contract with his client for a fee 
 contingent upon success,*® and that such fee may consist of a 
 share of the land in litigation; *' and where the contract has 
 been performed by the attorney, its specific performance may be 
 enforced against the client.*' Contracts of this character are not 
 now considered champertous.*' Nor can such a contract be said 
 to be unreasonable because the value of the land has enhanced 
 
 15 Lipscomb v. Adams, 193 Mo. 530, Montana. — Myers v. Bender, 46 
 91 S. W. 1046, 112 Am. St. Eep. 500. Mont. 497, 129 Pae. 330. 
 
 1* See supra, § 393. A'eio Jersey. — Adams v. Schiuitt, 
 
 16 See infra, § 428 et seq. And see 68 N. J. Eq. 168, 60 Atl. 345. 
 supra, 152-163. Texas. — Carlisle v. Gibbs, 44 Tex 
 
 l6Tull V. Nash, 141 Fed. 557, 73 Civ. App. 189, 98 S. W. 192; Hart 
 
 C. G. A. 29; Carson v. Fogg, 34 Wash. v. Hunter, 52 Tex. Civ. App. 75, 114 
 
 448, 76 Pac. 112. S. W. 882; Cahill v. Dickson, 77 S. 
 
 " CoZi/ornia.— Ballard v. Carr, 48 W. 281. 
 Cal. 74 ; Adams v. Hopkins, 69 Pae. 18 Howard v. Throckmorton, 48 
 
 228, affirmed 73 Pac. 971. Cal. 482; Deering v. Schreyer, 171 
 
 Kentucky. — Smith v. Thompson, 7 N. Y. 451, 64 N. E. 179, reversing 
 
 B. Mon. 305; Corbin v. Mulligan, 1 58 App. Div. 322, 68 N. Y. S. 1015; 
 
 Bush 297. Martin v. Piatt, 5 N. Y. St. Rep. 
 
 Missouri. — Lipscomb v. Adams, 193 284; Carson v. Fogg, 34 Wash. 448, 
 
 Mo. 530, 91 S. W. 1046, 112 Am. St. 76 Pac. 112. 
 Rep. 500 ; Duke v. Harper, 8 Mo. App. !» See supra, § 387. 
 
 296. 
 
732 CONTEACTS FOE COMPENSATION. [§ 423 
 
 since the contract was made.^" So, where the client sells the land 
 which was recovered for him by an attorney under an agreement 
 which entitled him to a share thereof, the attorney is entitled to 
 be paid from the proceeds if they can be reached.^ 
 
 § 423. Happening of Contingency. — The compensation 
 agreed upon in contract for contingent fees does not become due 
 until the contingency happens — that is, until the attorney does 
 what he agreed to do.^ Thus where an agreement between attorney 
 and client binds the attorney, in consideration of a contingent 
 fee, to obtain for his client's claim a security "beyond cavil," the 
 agreement will be strictly construed, and the attorney will be re- 
 quired to obtain security, which, so far as regards safety, is as 
 good as money.* Where an attorney agreed with a county, against 
 which mandamus proceedings were pending to compel the issue 
 of certain bonds, to defend the suits relating thereto for a stipu- 
 lated fee, and for a further sum to be paid "in the event the 
 county shall not be obliged to issue said bonds," or in the event 
 of a compromise without the attorney's consent, and to be paid 
 when "the validity of the bonds is determined in favor of said 
 county;" it was held that the contingency upon which the fee 
 depended was not affected by a decision, in another case, that 
 similar bonds, already issued, were invalid.* And where the 
 plaintiff in an action for divorce, in order to procure her attor- 
 ney's consent to the substitution of another attorney in his stead, 
 signed a stipulation that, in the event that alimony theretofore 
 
 20 Howard v. Throckmorton, 48 Cal. N. Y. 514, 90 N. E. 1159, affirming 
 
 482; Smith v. Thompson, 7 B. Mon. 127 App. Div. 530, 111 N. Y. S. 892; 
 
 (Ky.) 305. Wilson r. Horton, 140 N. Y. S. 980. 
 
 1 Hand v. Savannah, etc., E. Co., North Carolina. — Johnston v. 
 
 21 S. C. 162. Cutehin, 133 N. C. 119, 45 S. E. 522. 
 
 Z Alabama. — Cheney v. Kelly, 95 Pennsylvania. — Dickerson v. Pyle, 
 
 Ala. 163, 10 So. 664. 4 Phila. 259, 18 Leg. Int. 37. 
 
 Kentuclcy. — Evans v. Bell, 6 Dana Texas. — Shaw v. Tlireadgill, 53 Tex. 
 
 479; Hargis V. Louisville Gas Co., 22 Civ. App. 254, 115 S. W. 671. 
 
 S. W. 85; Fisk v. Snyder, 4 Ky. L. 3 Dickerson v. Pyle, 4 Phila. (Pa.) 
 
 Rep. 716. 259, 18 Leg. Int. 37. 
 
 Montana. — Foley v. Kleinschmidt, * Richland County v. Millard, 9 111. 
 
 28 Mont. 198, 72 Pac. 432. App. 396. 
 
 New York. — Haire v. Hughes, 197 
 
424] 
 
 CONTEACTS FOE COMPENSATIOISr. 
 
 io-j 
 
 awarded was collected from the defendant, a certain sum should 
 be paid out of it to the former attorney ; it was held that such pay- 
 ment was contingent on the collection of the alimony as awarded, 
 and could not be enforced where the amount thereof was reduced 
 by an order subsequently procured by the defendant.* So, where 
 an attorney agrees to collect a certain claim, and is to be paid 
 out of the recovery and not otherwise, he is entitled to no com- 
 pensation under the contract until he actually collects the claim.® 
 And where an attorney informs his client that a claim, the col- 
 lection of which he has undertaken on a contingent fee, is hope- 
 less, he cannot recover compensation from the client who, there- 
 after, collects the claim personally.'' 
 
 § 424. Manner of Effecting Contingency. — The manner in 
 which the desired result is brought about is immaterial so long 
 as it is a lawful one, unless the contract provides for performance 
 in some particular way ; thus it is not essential that there should 
 be a trial or other litigation ; indeed, contracts for contingent fees 
 frequently provide for the payment of the fee upon the settle- 
 ment of the. action or claim.' Nor does the fact that a matter is 
 
 5 Bittiner v. Goldman, 20 Misc. 
 330, 45 N. Y. S. 953. 
 
 6 Georgia. — ^Moses v. Bagley, 55 Ga. 
 283. 
 
 Illinois. — Fraatz v. Garrison, 83 
 III. 60. 
 
 Indiana. — Scobcy v. Ross, 5 Ind. 
 445. 
 
 Louisiana. — Shepherd v. Dickson, 
 38 La. Ann. 741. 
 
 Xeto York. — Mills v. Fox, 4 E. D. 
 Smith 220; Bittiner v. Goldman, 20 
 Misc. 330, 45 N. Y. S. 953; Mains v. 
 Gethen, 111 N. Y. S. 598; Phelps v. 
 Emery, 24 N. Y. Wkly. Dig. 541. 
 
 North Carolina. — Leach v. Strange, 
 10 N. C. 601. 
 
 7Simrall !'. Morton, 12 S. W. 185, 
 12 Ky. L. Rep. 31; Mains v. Gethen, 
 in N". Y. S. 598. See also Leach v. 
 Strange, 10 N. C. 601. 
 
 8 State V. Barrow, Mann. Unrep. 
 
 Gas. (La.) 332; Stoutenhurgh v. 
 Fleer, 87 N. Y. S. 504. 
 
 Where M., against whom judgment 
 had been rendered for the recovery 
 of land, employed attorneys to re- 
 gain the land for him, agreeing to 
 pay them $200 for their services, but 
 stipulating that they were to receive 
 notliing unless they regained the land 
 for him, and placed in their hands a 
 refunding bond by which C. was ob- 
 ligated to him for the loss of the 
 land, the attorneys having procured 
 C. to purchase the land and convey 
 it to M. in discharge of his obliga- 
 tion, the contingency has happened 
 upon which the attorneys were to 
 be entitled to the stipulated fee. Mc- 
 intosh V. Bach, 110 Ky. 701, 62 S. W. 
 515, 23 Ky. L. Rep. 74. 
 
 And see infra, % 525. 
 
734 CONTEACTS FOE COMPENSATION. [§ 425 
 
 conducted successfully without trial or other litigation, warrant 
 the court in disregarding the contract and reducing the fee stipu- 
 lated for therein.* Thus where, in an action of ejectment, the 
 defendant's attorneys answered by a general denial, and directed 
 him to procure an abstract of title, and in so doing the defendant 
 learned of and purchased an outstanding title, and the plaintiff 
 thereafter dismissed the suit without trial, it was held that the 
 defendant's attorneys had "gained the suit." " So, under a con- 
 tract to pay an attorney a percentage "on all amounts collected," 
 the attorney is entitled to his percentage, although the claim is 
 paid without his interference.^* It has been held that the condi- 
 tion in a contract to pay an attorney in a will contest a stipulated 
 fee "in case the will is defeated and our clients get their shares" 
 is satisfied where the contest and the attorney's services result in a 
 compromise agreement by which the will, which, as propounded, 
 disinherited such clients, was so qualified in probate that they 
 received a larger proportion of the estate than if the testator had 
 died intestate.''* 
 
 § 425. Creation of Equitable Assignment. — Where a client 
 assigns to his attorney, in payment of the services to be performed 
 by him, an interest in the subject-matter of the litigation, the 
 transaction will, as a general rule, be upheld as an equitable as- 
 signment, and may be enforced as such.*' So, in some jurisdic- 
 
 9 Murray v. Waring Hat Mfg. Co., Ins. Co., 28 Ind. App. 428, 63 N. E. 
 142 App. Div. 514, 127 N. Y. S. 78. 47. 
 
 10 Moss V. Kichie, 50 Mo. App. 75. Kansas. — Aultman v. Waddle, 40 
 
 11 Jacks V. Thweatt, 39 Ark. 340. Kan. 202, 19 Pae. 730. 
 
 And see supra, § 528. Michigan. — Weeks v. Wayne Circuit 
 
 laingersoU v. Coram, 211 U. S. Judges, 73 Mich. 256, 41 N. W. 269. 
 
 335, 29 S. Ct. 92, 53 U. S. (L. ed.) A'ew ror/c— Fairbanks v. Sargent, 
 
 208, reversing 148 Fed. 169, 78 C. C. 104 N. Y. 108, 9 N. E. 870, 5S Am. 
 
 A. 303, 127 Fed. 418. Rep. 490; Deering v. Schreyer, 171 
 
 18 United States. — Cain v. Hoeken- N. Y. 451, 64 N. E. 179, modifying 
 
 smith Wheel & Car. Co., 357 Fed. 58 App. Div. 322, 68 N. Y. S. 1015 
 
 992. Bennett v. Donovan, 83 App. Div 
 
 California. — Hoffman v. Vallejo, 45 95, 82 N. Y. S. 506; Flannery 
 
 Cal. 564; Goad v. Hart, 128 Cal. 197, Geiger, 46 Misc. 619, 92 N. Y. S. 785 
 
 60 Pac. 761, 964. OAio.— Pittsburg, etc., Co. v. Volk- 
 
 Indiana. — Blakey v. New York L. ert, 58 Ohio St. 362, 50 N. E. 924; 
 
§ 425] 
 
 OONTEACTS FOE COMPENSATION. 
 
 735 
 
 tions, an agreement that the attorney shall receive a specific sum, 
 or a certain percentage, to be paid out of the amount recovered, 
 will be deemed to constitute an equitable assignment in favor of 
 the attorney.** An agreement that the attorney shall have a lien 
 upon the sum to be recovered for a specified amount, as compen- 
 sation for his services, constitutes a valid equitable assignment, 
 which attaches to the judgment as soon as it is entered. *° So, 
 where the proofs of a debt are placed with an attorney, with in- 
 structions to collect the same, and retain out of the proceeds the 
 amount due him as fees for other work, the transaction is an 
 equitable assignment, though the amount thereof was not at the 
 time agreed upon.*' In such cases the attorney's right is para- 
 mount to that of a subsequent assignee, or attaching creditor, 
 of the client.*'' There can, of course, be no equitable assign- 
 ment where the terms of the contract preclude the idea that 
 
 Pennsylvania Co. v. Thatcher, 78 
 Ohio St. 175, 85 N. E. 55. 
 
 Oregon. — Ladd v. Ferguson, 9 Ore. 
 180 (assignment of costs and dis- 
 bursements); Alexander v. Munroe, 
 54 Ore. 500, 101 Pac. 903, 103 Pac. 
 514, 135 Am. St. Rep. 840. 
 
 Pennsylvania. — Com. v. Terry. 11 
 Pa. Super. Ct. 547. 
 
 Texas. — Galveston, etc., E. Co. v. 
 Ginther, 96 Tex. 295, 72 S. W. 160, 
 affirming 30 Tex. Civ. App. 161, 70 
 S. W. 96; Texas Cent. R. Co. v. An- 
 drews, 28 Tex. Civ. App. 477, 67 S. 
 W. 923. 
 
 14 United States. — Cain v. Hocken- 
 smith Wheel, etc., Co., 157 Fed. 992. 
 
 Minnesota.-^Cojity v. Latterner, 31 
 Minn. 239, 17 N. W. 385. 
 
 Jiew York. — Fairbanks v. Sargent, 
 104 N. Y. 108, 9 N. E. 870, 58 Am. 
 Eep. 490; Holmes v. Evans, 129 N. 
 Y. 140, 29 N. E. 233, affirming 59 
 Super. Ct. 136, 13 N. Y. S. 614; 
 Brown v. New Yorlc, 1 1 Hun 21 ; 
 Bennett v. Donovan, 83 App. Div. 95, 
 82 N. Y. S. 506. 
 
 Pennsylvania.- — ^Hagemann's Estate, 
 5 Pa. Co. Ct. 576. 
 
 Texas. — Texas Cent. R. Co. v. An 
 drews, 28 Tex. Civ. App. 477, 67 S 
 W. 923. 
 
 IB Terney v. Wilson, 45 N. J. L. 
 282. And see infra, § 634, as to the 
 right of a lien in such cases. 
 
 16 Milmo Nat. Banl< v. Convery, 8 
 Tex. Civ. App. 181, 27 S. W. 828. 
 
 IT Connecticut. — ^Ripley v. Bull, 19 
 Conn. 53. 
 
 Florida. — Sammis v. L'Engle, 19 
 Fla. 800. 
 
 New Jersey. — Terney v. Wilson, 45 
 N. J. L. 282. 
 
 Neto York. — Jaeger v. Koenig, 33 
 Misc. 82, 67 N. Y. S. 172, reversing 
 32 Misc. 244, 65 N. Y. S. 795; Flan- 
 nery v. Geiger, 46 Misc. 619, 92 N. 
 Y. S. 785. 
 
 Pennsylvania. — Patten v. Wilson, 
 34 Pa. St. 299. 
 
 Texas. — Jlilmo Nat. Bank v. Con- 
 very, 8 Tex. Civ. App. 181, 27 S. W. 
 828. 
 
 The rule stated in the text forms 
 
Y36 
 
 CONTEACTS TOE COMPENSATION-. 
 
 [§ 426 
 
 it was so intended,*' and in some states an agreement for 
 contingent fees will not operate as an equitable assignment without 
 an express stipulation to that effect." In several jurisdictions it 
 is held that an executory contract for the payment to an attorney 
 of a specified percentage of such amount as may be recovered does 
 not give to the attorney any interest whatever, in law or in equity, 
 in the cause of action, either by way of assignment or lien.*" 
 
 § 426. Creation of Interest in Subject-Matter of Litiga- 
 tion. — The general rule is that a contract whereby a client agrees 
 to pay, or assigns to his attorney, a specified percentage of such 
 amount as may be recovered, is executory merely, and gives to the 
 attorney neither a legal nor an equitable interest in the cause of 
 action ; * and this is especially true of actions for personal injury,^ 
 
 an exception to the general principle 
 regarding the assignment of ehoses 
 in action, and is limited to the as- 
 signment of a debt or judgment by 
 the creditor to his attorney, as se- 
 curity for his services and disburse- 
 ments in a suit brought upon the 
 debt, or in which the judgment was 
 rendered. Ripley v. Bull, 19 Conn. 
 53. 
 
 An assignment of a chose in action 
 is wholly ineffectual as against the 
 debtor, in the absence of notice to 
 him of the assignment, or knowledge 
 of facts in relation thereto sufficient 
 to put him upon inquiry. Until the 
 debtor has notice of such assignment 
 he may deal with the assignor as 
 though no assignment had ever been 
 made. Nielsen v. Albert Lea, 91 
 Minn. 388, 392, 98 N. W. 195, 197. 
 
 18 Woods V. Diclcinson, 7 Mackey 
 (D. C.) 301. 
 
 19 Stearns ». Wollenberg, 51 Ore. 
 88, 92 Pac. 1079, U L.E.A.(N.S.) 
 1095; McRae v. Warehime, 49 Wash. 
 194, 94 Pac. 924; Plummer v. Great 
 
 Northern R. Co., 60 Wash. 214, 110 
 Pac. 989, 31 L.R.A.(N.S.) 12! 5. 
 
 20 Story V. Hull, 143 111. 50C, 32 
 N. E. 265; Cameron v. Boeger, 200 
 111. 84, 65 N. E. 690, 93 Am. St. Rep. 
 165, affirming 102 111. App. 649; Wel- 
 ler V. Jersey City, etc., R. Co., 68 
 N. J. Eq. 659, 6 Ann. Cas. 442, 61 Atl. 
 459, affirming 66 N. J. Eq. 11, 57 
 Atl. 730; Gillette v. Murphy, 7 Okla. 
 91, 54 Pac. 413. Compare ante, this 
 section, note 13. 
 
 1 Georgia. — Nesbit v. Cautrell, 29 
 Ga. 255. 
 
 Illinois.—StoTy v. Hull, 143 111. 
 506, 32 N. E. 265, affirming 41 111. 
 App. 109; Cameron v. Boeger, 200 
 111. 84, 65 N. E. 690, 93 Am. St. Rep. 
 165, affirming 102 111. App. 649. 
 
 Neio Jersey. — Weller v. Jersey 
 City, etc., R. Co., 68 N. J. Eq. 659, 
 6 Ann. Cas. 442, 61 Atl. 459, affirming 
 66 N. J. Eq. 11, 57 Atl. 730. 
 
 Texas. — Mays v. Sanders, 90 Tex. 
 132, 37 S. W. 595; American Cotton 
 Co. r. Simmons, 39 Tex. Civ. App. 
 189, 87 S. W. 842. 
 
 2 Weller v. Jersey City, etc., R. 
 
§ 427] CONTEACTS FOE COMPENSATION, 737 
 
 although it has been held, under statutes providing for the survival 
 of the right of action, that a cause of action for personal injuries 
 may be assigned.' Nov does such a contract entitle, or necessitate, 
 the attorney being made a party to the cause,* or give the attorney 
 the right to intervene in the suit.^ Thus it has been held that a 
 contract with an attorney whereby the latter was to sue for the re- 
 covery of lands, and be compensated by a conveyance of a part 
 thereof when recovered, vests no title, legal or equitable, to such 
 property in the attorney.^ On the other hand, it has also been held 
 that where a client contracts with his attorney to convey to him a 
 portion of the property in litigation, in consideration of legal serv- 
 ices to be rendered, the transaction gives the attorney an interest 
 in the property,'' which may be enforced by specific performance.' 
 
 § 427. Excessive Fees. — A contract between attorney and 
 client for fees, whether contingent or otherwise, is always subject 
 to scrutiny by the court,® as, indeed, are all their other dealings.^" 
 But the contract will prevail unless it appears that it was in- 
 duced by fraud, or that, in view of the nature of the claim, the 
 compensation provided for is so excessive as to evince a purpose 
 on the part of the attorney to obtain an improper or undue ad- 
 vantage over his client.*' it being considered that an attorney may 
 
 Co., 68 N. J. Eq. 659, 6 Ann. Cas. has been amicably adjusted, an at- 
 
 442, 61 Atl. 459; Pulver v. Harris, torney of one of tlie parties cannot 
 
 62 Barb. (N. Y.) 500; Kusterer v. affect the settlement by making claim 
 
 Beaver Dam, 56 Wis. 471, 14 N. W. to part of the land under a deed, till 
 
 617, 43 Am. Eep. 725. then undisclosed, made by his client 
 
 3 Gulf, etc., R. Co. V. Miller, 21 while suing to recover possession, and 
 Tex. Civ. App. 609, 53 S. W. 709; constituting, in effect, a contract for 
 Texas Cent. R. Co. v. Andrews, 28 contingent compensation. Murray's 
 Tex. Civ. App. 477, 67 S. W. 923. Estate, 13 Pa. Co. Ct. 70. 
 
 4 Cameron v. Boeger, 200 111. 84, 7 Hoffman v. Vallejo, 45 Cal. 564; 
 65 N. E. 690, 93 Am. St. Eep. 165, Howard v. Throckmorton, 48 Cal. 482. 
 affirming 102 111. App. 649; San An- 8 See the preceding section note 13. 
 tonio, etc., R. Co. v. Belt, 24 Tex. See also supra,, § 422, note 18. 
 
 Civ. App. 281, 59 S. W. 607. 9 See infra, % 421. 
 
 B Story V. Hull, 143 111. 506, 32 10 See supra, §§ 152-182. 
 
 N. E. 265, affirming 41 111. App. 109. n Morehouse v. Brooklyn Heights 
 
 . ecorbin v. Mulligan, 1 Bush (Ky.) R. Co., 185 N. Y. 520, 7 Ann. Cas. 
 
 297. 377, 78 N. B. 179; Weeks v. Gattell, 
 
 After litigation in regard to land 125 App. Div. 402, 109 N. Y. S. 977, 
 Attys. at L. Vol. II.— 47. 
 
738 
 
 CONTBACTS FOE COMPENSATIOIT. 
 
 [§ 427 
 
 properly demand a larger compensation where his fees are con- 
 tingent on success.^^ 
 
 Where the contract provides for the payment of a certain per- 
 centage of the recovery, such percentage is to be calculated on 
 the actual amount received,^' even though it includes interest 
 which accrued since the recovery was had/* or even though the 
 thing recovered has enhanced in value.** Where, however, the 
 client does not recover the whole amount of a judgment rendered 
 in his favor, the attorney's percentage must be based on the actual 
 recovery; thus it has been held that a contract by a client to pay 
 his attorney, as a contingent fee, a percentage of the damages he 
 may recover in the action, binds him to pay only such percentage 
 of the damages actually received, and not of the judgment ren- 
 dered." 
 
 affirmed 193 N. Y. 681, 87 N. E. 
 1129; Dorr v. Camden, 55 W. Va. 
 226, 46 S. E. 1014, 65 L.E.A. 348. 
 And see Humphreys v. McLachlan, 
 87 Miss. 532, 40 So. 151. 
 
 18 Morehouse v. Brooklyn Heights 
 E. Co., 123 App. Div. 680, lOS N. 
 Y. S. 152, affirmed 195 N. Y. 537, 88 
 N. E. 1126; Ransom v. Ransom, 147 
 App. Div. 835, 133 N. Y. S. 173, re- 
 versing 70 Misc. 30, 127 N. Y. S. 
 1027. 
 
 iSLavenson v. Wise, 131 Cal. 369, 
 63 Pac. 622; Mcllvaine v. Steinson, 
 90 App. Div. 77, 85 N. Y. S. 889; 
 Weeks v. Gattell, 125 App. Div. 402, 
 109 N. Y. S. 977, affirmed 193 N. Y. 
 681, 87 N. B. 1129. 
 
 Where a contract betvfeen attor- 
 neys and client provides for the pay- 
 ment, as a contingent fee for serv- 
 ices, of a sum equal to "from ten to 
 fifteen per cent" of the market value 
 of the interest of the client recovered, 
 the contract gives them the right to 
 claim fifteen per cent, and they can- 
 not be restricted to ten per cent. 
 Heiberger v. Worthington, 23 App. 
 Cas. (D. C.) 565. 
 
 But a contract to pay attorneys 
 "five per cent of all that they might 
 save or make" for an estate "by ex- 
 cepting to the settlements of the es- 
 tate as made by the master" does not 
 entitle them to a percentage on un- 
 contested claims. Mcllvoy v. Rus- 
 sell, 9 Ky. L. Rep. 359 (abstract). 
 
 1* Bassford v. Johnson, 172 N. Y. 
 488, 65 N. E. 260, modifying 71 App. 
 Div. 617, 76 N. Y. S. 1009. 
 
 15 Chester v. Jumel, 125 N. Y. 237, 
 26 N. E. 297, reversing 53 Hun 629, 
 5 N. Y. S. 809. 
 
 16 California. — Adams v. Hopkins, 
 69 Pac. 228, affirmed 73 Pac. 971. 
 
 loyya. — Rickel v. Chicago, etc., R. 
 Co., 112 la. 148, 83 N. W. 957. 
 
 Kentucky. — Leslie v. York, 1J2 Ky. 
 712, 66 S. W. 751, 23 Ky. L. Rep. 
 2076. 
 
 Feto Yorh. — Wendel v. Binninger, 
 132 App. Div. 785, 117 N. Y. S. 616. 
 
 Virginia. — ^Nickels v. Kane, 82 Va. 
 309. 
 
 West Virginia. — Fisher v. Mylius, 
 42 W. Va. 638, 26 S. E. 309. 
 
 Where an attorney was retained 
 in eminent domain proceedings, and 
 
§ 427] 
 
 CONTRACTS FOE COMPENSATION. 
 
 739 
 
 Whether or not the contract is unconscionable is a question of 
 fact, depending upon the character of the claim and the services 
 required in prosecuting it to judgment.^'' Thus contracts for 
 contingent fees have been sustained to the extent of twenty-five per 
 cent,^^ thirty-three and one-third per cent,^' forty per cent,*" forty- 
 seven and one-half per cent,*^ and fifty per cent of the recovery ; ^ 
 and in some cases a fee of more than fifty per cent has been 
 
 to receive for his services ten per cent 
 of whatever was awarded and con- 
 firmed, and the court confirmed an 
 award, but directed that incum- 
 brances on the property and back 
 taxes should be paid out of it, the 
 attorney was only entitled to 10 
 per cent of the surplus, and not of 
 the gross amount awarded. Wendel 
 V. Binninger, 132 App. Div. 785, 117 
 N. Y. S. 616. 
 
 "Morehouse v. Brooklyn Heights 
 R. Co., 185 N. Y. 520, 7 Ann. Cas. 
 .377, 78 N. E. 179. 
 
 iSLarned v. Dubuque, 86 la. 166, 
 63 N. W. 105; Bennett v. Donovan, 
 83 App. Div. 95, 82 N. Y. S. 506. 
 
 19 Rust V. Larue, 4 Litt. (Ky.) 411, 
 14 Am. Dee. 172 ; Hall v. Gird, 7 Hill 
 (N. Y.) 586; In re Hynes, 105 N. Y. 
 560, 12 N. E. 60; Ransom v. Cutting, 
 112 App. Div. 150, 98 N. Y. S. 282, 
 affirmed 188 N. Y. 447, 81 N. E. 324; 
 Galveston, etc., R. Co. v. Ginther, 96 
 Tex. 295, 72 S. W. 166, affirming 30 
 Tex. Civ. App. 161, 70 S. W. 96. 
 
 20 Funk V. Mohr, 185 111. 395. 57 
 N. E. 2, affirming 85 111. App. 97; 
 Syme v. Terry & Tench Co., 125 App. 
 Div. 610, 110 N. Y. S. 25; Texas Cent. 
 R. Co. V. Andrews, 28 Tex. Civ. App. 
 477, 67 S. W. 923. 
 
 81 Chester v. Jumel, 53 Hun 629, 5 
 N. Y. S. 809; Chester v. Jumel, 125 
 N. Y. 237, 26 N. E. 297, reversing 53 
 Hun 629, 5 N. Y. S. 809. 
 
 1 Connecticut. — Grievance Commit- 
 tee V. Ennis, 84 Conn. 594, 80 At]. 
 767. 
 
 Kentucky. — Sanders v. Woodbury, 
 146 Ky. 153, 142 S. W. 207. 
 
 Maryland. — Cain v. Warford, 33 
 Md. 23; Etzel v. Duncan, 112 Md. 
 346, 76 Atl. 493. 
 
 Michigan. — Dreiband v. Candler, 
 166 Mich. 49, 131 N. W. 129. 
 
 Missouri. — Lipscomb v. Adams, 193 
 Mo. 530, 91 S. W. 1046, 112 Am. St. 
 Rep. 500. 
 
 Titeio Jersey. — Adams v. Schmitt, 
 68 N. J. Eq. 168, 60 Atl. 345. 
 
 mew York. — Deering v. Schrcyer, 
 171 N. Y. 451, 64 N. E. 179, reversi/ng 
 58 App. Div. 322, 68 N. Y. S. 1015; 
 In re Pitzsimons, 174 N. Y. 15, 66 
 N. E. 554, reversing 77 App. Div. 345, 
 79 N. Y. S. 194; Morehouse v. Brook- 
 lyn Heights R. Co., 185 N. Y. 520, 
 7 Ann. Cas. 377, 78 N. E. 179, revers- 
 ing 102 App. Div. 627, 92 N. Y. S. 
 1134; Ransom v. Cutting, 188 N. Y. 
 447 ; 81 N. E. 324, affirming 112 App. 
 Div. 150, 98 N. Y. S. 282; Rogers v. 
 Polytechnic, etc., Inst., 87 App. Div. 
 81, 84 N. Y. S. 12; Weeks v. Gattell, 
 125 App. Div. 402, 109 N. Y. S. 977, 
 affirmed 193 N. Y. 681 mem., 87 N. 
 E. 1129; In re Edgecombe Road, 128 
 App. Div. 432, 112 N. Y. S. 845; 
 McCoy V. Gas Engine & Power Co., 
 71 Misc. 537, 129 N. Y. S. 251; Stout- 
 enburgh v. Fleer, 87 N. Y. S. 504. 
 
740 
 
 COWTEACTS FOE COMPENSATION. 
 
 [§ 428 
 
 sanctioned.* And, on the other hand, in a recent case, fifty per cent 
 was deemed excessive.* The amount of compensation generally 
 will be considered hereafter.* 
 
 Matters Affecting Validity of Contracts Generally. 
 
 § 428. Fairness. — As in all other dealings between attorney 
 and client,* it is essential that a contract for the compensation of 
 the attorney rest on the utmost good faith; it must be fair,* 
 
 Pennsylvania. — Mumma's Appeal, 
 127 Pa. St. 474, 18 Atl. 6, 24 W. N. 
 C. 297; Sloan's Estate, 14 Pa. Co. 
 Ct. 359. 
 
 Texas. — Hart v. Hunter, 52 Tex. 
 Civ. App. 76, 114 S. W. 882; Tabet 
 V. Powell, 78 S. W. 997. 
 
 2 A contract for an attorney's fee 
 for $7000, contingent on success, in 
 a suit to recover land worth from 
 $10,000 to $12,000, the client being 
 otherwise without means, and the 
 parties dealing at arm's length, is 
 not unconscionable, especially where 
 the case was twice carried to the 
 supreme court, and extended over 
 some seven years. Fellows v. Smith, 
 190 Pa. St. 301, 42 Atl. 678. 
 
 3 Herman v. Metropolitan St. E. 
 Co., 121 Fed. 184. 
 
 4 See infra, § 439 et seq. 
 
 5 See supra, §§ 152-163. 
 
 The rule applying to dealings be- 
 tween attorney and client does not 
 apply in the making of a contract 
 to recover an estate by one whose bus- 
 iness it is to find estates having no 
 notorious claimant, to hunt up the 
 heirs, and recover the estates for 
 them. Adams v. Schmitt, 68 N. J. 
 Eq. 168, 60 Atl. 345. 
 
 6 United States. — Manning v. Clarlc, 
 40 Fed. 121; Muller v. Kelly, 125 
 Fed. 212, 60 C. C. A. 170, reversing 
 116 Fed. 545. 
 
 Alabama. — Lecatt v. Sallee, 3 Port. 
 115, 29 Am. Dec. 249. 
 
 District of Columiia. — Whiting v. 
 Davidge, 23 App. Cas. 156. 
 
 Georgia. — Bailey v. Devine, 123 Ga. 
 653, 51 S. E. 603, 107 Am. St. Rep. 
 153. 
 
 Illinois. — Elmore v. Johnson, 143 
 111. 513, 32 N. E. 413, 36 Am. St. 
 Rep. 401, 21 L.R.A. 366; Robinson 
 V. Sharp, 201 El. 86, 66 N. E. 299; 
 Dyrenforth v. Palmer, etc., Co., 240 
 111. 25, 88 N. E. 290; Pratt v. Kerns', 
 123 111. App. 86; Calkins v. Pease, 
 125 111. App. 270. 
 
 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. e. 797; Shirk v. 
 Neible, 156 Ind. 66, 59 N. E. 281, 
 83 Am. St. Rep. 150. 
 
 Iowa. — Ryan v. Ashton, 42 la. 365. 
 
 Kentucky. — Bibb v. Smith, 1 
 Dana 580. 
 
 Maine. — Burnham v. Heselton, 82 
 Me. 495, 20 Atl. 80, 9 L.E.A. 90. 
 
 Maryland. — Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 jVew Jersey. — Adams v. Schmitt, 
 68 N. J. Eq. 168, 60 Atl. 345. 
 
 Tslew York. — Blaikie v. Post, 137 
 App. Div. 648, 122 N. Y. S. 292. 
 
 Oregon. — Hamilton v. Holmes, 48 
 Ore. 453, 87 Pac. 154. 
 
 Tennessee. — Phillips v. Overton, 4 
 Hayw. 292; Rose v. Mynatt, 7 Yerg. 
 36; McMahan v. Smith, 6 Heisk. 187; 
 
§ 428] 
 
 CONTEACTS FOE COMPElirSATIOH'. 
 
 741 
 
 reasonable/ and fully comprehended by the client,' to whom the 
 attorney must have disclosed any information which he may have, 
 and given proper legal advice.* Contracts which comply with 
 these requirements will be upheld ; " but where these elements 
 are wanting the contract will not be binding on the client,^* 
 
 Planters' Bank v. Hornberger, 4 Coldw. 
 567; Newman v. Davenport, 9 Baxt. 
 538. 
 
 Texas. — Waterbury v. Laredo, 68 
 Tex. 565, 5 S. W. 81. 
 
 Vermont. — Davis v. Farwell, 80 Vt. 
 166, 67 Atl. 129. 
 
 Virginia. — Thomas v. Turner, 87 
 Va. 1, 12 S. E. 149, 668. 
 
 'See infra, § 431. 
 
 8 See infra, § 430. 
 
 9 See infra, § 430. 
 
 W United States. — Jenkins v. Ein- 
 stein, 3 Biss. 128, 13 Fed. Cas. No. 
 7,265. 
 
 Alabama. — Ware v. Russell, 70 Ala. 
 174, 45 Am. Rep. 82. 
 
 Connecticut. — Smyth v. Ripley, 33 
 Conn. 306. 
 
 Florida. — Wharton v. Hammond, 20 
 Fla. 934. 
 
 Illinois. — Dyrenforth v. Palmer 
 Pneumatic Tire Co., 240 111. 25, 88 
 N. E. 290, following Morrison v. 
 Smith, 130 111. 304, 23 N. E. 241; 
 Ward V. Yancey, 78 111. App. 368. 
 
 Indiana. — Tong v. Orr, 44 Ind. 
 App. 681, 87 N. E. 147, affirmed 44 
 Ind. App. 693, 88 N. E. 308. 
 
 lovM. — Lindt v. Linder, 117 la. 
 110, 90 N. W. 596. 
 
 Maryland. — Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 Missouri. — Wright v. Kansas City, 
 etc., Co., 141 Mo. 518, 126 S. W. 
 517; Reed «. Mellor, 5 Mo. App. 
 567; Beagles v. Robertson, 135 Mo. 
 App. 306, 115 S. W. 1042. 
 
 'New Jersey. — Schomp v. Schenck, 
 
 40 N. J. L. 195, 29 Am. Rep. 219; 
 Zabriskie v. Woodruff, 48 N. J. L. 
 610, 7 Atl. 336. 
 
 New York. — Zogbaum v. Parker, 55 
 N. Y. 120; Hall v. Grouse, 13 Hun 
 557; McCoy v. Gas Engine, etc., Co., 
 135 App. Div. 771, 119 N. Y. S. 864; 
 Porter v. Parmly, 39 Super. Ct. 219; 
 Newberg v. Schwab, 49 Super. Ct. 
 232; Allison v. Scheeper, 9 Daly 365; 
 Jenkins v. Williams, 2 How. Pr. 261. 
 
 Oregon. — Hamilton v. Holmes, 48 
 Ore. 453, 87 Pac. 154. 
 
 Pennsylvania. — Mumma's Appeal, 
 127 Pa. St. 474, 18 Atl. 6, 24 W. N. 
 C. 297. 
 
 Tejcas.— Tabet v. Powell, 78 S. W- 
 997. 
 
 Wisconsin. — Ryan v. Martin, 18 
 Wis. 672. 
 
 11 United States. — Taylor v. Be- 
 miss, 110 U. S. 42, 3 S. Ct. 441, 28 
 U. S. (L. ed.) 64. 
 
 Illinois. — Willin v: Burdette, 172 
 111. 117, 49 N. E. 1000; Robinson v. 
 Sharp, 201 111. 86, 66 N. E. 299. 
 
 Indiana. — Judah v. Vincennes Uni- 
 versity, 23 Ind. 273. 
 
 Iowa. — Donaldson v. Eaton, 136 
 la. 650, 114 N. W. 19, 125 Am. St. 
 Rep. 275. 
 
 Kentucky. — Downing v. Major, 2 
 Dana 228; Smith v. Thompson, 7 B. 
 Mon. 308-; Howard v. Cornelison, 5 
 Ky. L. Rep. 902. 
 
 Maryland. — Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 New York. — Wallis v. Loubat, 2 
 Den. 607. 
 
742 
 
 CONTEACTS FOE COMPENSATIOIT. 
 
 [§ 428 
 
 and the attorney can only recover, if at all, on a quantum 
 meruit.^ 
 
 Because of their confidential relations,** the law commands that 
 all the transactions between an attorney and his client, including 
 contracts for compensation, shall be anxiously and jealously scru- 
 tinized, that the client may be protected from his own overweening 
 confidence, and from the influence or ascendency which the rela- 
 tion generates.** Nor does a statute permitting attorneys to con- 
 
 Oregon.. — Ah Foe V. Bennett, 35 
 Ore. 231, 58 Pac. 508. 
 
 Tennessee. — Planters Bank v. Horn- 
 berger, 4 Coldw. 531. 
 
 Washington. — Schultheis v. Nash, 
 27 Wash. 250, 67 Pac. 707. 
 
 18 Illinois. — Elmore v. Johnson, 143 
 111. 513, 32 N. E. 413, 36 Am. St. 
 Eep. 401, 21 L.K.A. 366; Pratt v. 
 Kerns, 123 111. App. 86. 
 
 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. E. 797; Shirk v. 
 Neible, 156 Ind. 66, 59 N. E. 281. 83 
 Am. St. Rep. 150. 
 
 Pennsylvania. — Chester County v. 
 Barber, 97 Pa. St. 455. 
 
 Tennessee. — Planters Bank v. Ilorn- 
 berger, 4 Coldw. 531. 
 
 Texas. — Stewart v. Houston, etc., 
 R. Co., 62 Tex. 248. 
 
 West Virginia. — Dorr v. Camden, 
 55 W. Va. 226, 46 S. E. 1014, 65 
 L.R.A. 348. 
 
 13 Elmore v. Johnson, 143 111. 513, 
 32 N. E. 413, 36 Am. St. Rep. 401, 
 21 L.R.A. 366. 
 
 In view of the fiduciary relation 
 between an attorney and client, a, 
 court of equity may inquire into 
 the good faith of a written agree- 
 ment between them for Compensa- 
 tion, notwithstanding Code Civ. 
 Proc. § 66 (Judiciary Law [Consol. 
 Laws 1909, c. 30] § 474), providing 
 that the compensation of an attor- 
 ney for services is governed by an 
 
 agreement, express or implied, which 
 is not restrained by law, though a 
 written agreement should not be set 
 aside unless there has been a mis- 
 representation or suppression of facts 
 by the attorney or undue influence 
 by which he has obtained an uncon- 
 scionable advantage. Ransom v. 
 Ransom, 147 App. Div. 835, 133 N. Y. 
 S. 173, reversing 70 Misc. 30, 127 
 N. Y. S. 1027. 
 
 1* United States. — ^MuUer v. Kelly, 
 125 Fed. 212, 60 C. C. A. 170, re- 
 versing 116 Fed. 545. 
 
 Alabama. — Dickinson v. Bradford, 
 59 Ala. 581, 31 Am. Eep. 23; Kidd 
 V. Williams, 132 Ala. 140, 31 So. 
 458, 56 L.R.A. 879. 
 
 Illiinois. — Dyrenforth v. Palmer, 
 etc., Co., 240 111. 25, 88 N. E. 200. 
 
 lovm.. — Donaldson v. Eaton, 130 
 Iowa 650, 114 N. W. 19, 125 A. S. E. 
 275, 14 L.R.A.(N.S.) 1168. 
 
 Maryland. — Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 'New Jersey. — Schomp v. Schenck, 
 40 N. J. L. 195, 29 Am. Eep. 219. 
 
 'New York. — Brotherson v. Consa- 
 lus, 26 How. Pr. 213; Burling v. 
 King, 2 Thomp. & C. 545; Fowler v. 
 Callan, 102 N. Y. 395, 7 N. E. 169; 
 Blaikie v. Post, 137 App. Div. 648, 
 122 N. Y. S. 292. 
 
 Oregon. — Hamilton v. Holmes, 48 
 Ore. 453, 87 Pac. 154. 
 
§ 429] 
 
 OONTEACTS FOB COMPENSATION. 
 
 743 
 
 tract with their clients relieve such dealings from that supervision 
 which the courts have ever exercised.^* 
 
 § 429. Advice and Disclosure of Fact by Attorney. — 
 
 Attorneys, in entering into contracts of employment with clients, 
 are required to exercise the highest order of good faith, not only 
 in advising the client, but also in disclosing all information in 
 their possession as to facts which would or might influence him 
 either in entering into, or refusing to execute, the contract. The 
 failure to do so renders the contract presumptively void.^® Thus 
 an attorney cannot recover on an agreement by his client to pay 
 him for services, when the agreement was brought about by his 
 fraudulent misrepresentations as to the amount which would be 
 recovered in a suit,''' or as to the magnitude of the services to be 
 
 Pennsylvania. — Chester County v. 
 Barber, 97 Pa. St. 455. 
 
 Washington. — Isham v. Parker, 3 
 Wash. 755, 29 Pac. 835. 
 
 Wisconsin. — Allard v. Lamirande, 
 29 Wis. 502; Dockery v. MoLellan, 
 93 Wis. 381, 67 K. W. 733. 
 
 16 Morton v. Forsoe, 249 Mo. 409, 
 155 S. W. 765; Haight r. Moore, 37 
 Super. Ct. (N. Y.) 16]. 
 
 i« Alabama.— Kidd v. Williams, 132 
 Ala. 140, 31 So. 458, 56 L.R.A. 879. 
 
 Arkansas. — Weil v. Fineran, 78 
 Ark. 87, 93 S. W. 568. 
 
 Illinois.— Fvsitt v. Kerns, 123 111. 
 App. 86. 
 
 Indiana. — Manley v. Felty, 146 
 Ind. 194, 45 N. E. 74. 
 
 Iowa. — Ryan v. Ashton, 42 la. 365 ; 
 Donaldson v. Eaton, 136 la. 650, 114 
 N. W. 19, 125 Am. St. Rep. 275. 
 
 New York. — White v. Whaley, 40 
 How. Pr. 353; Blaikie v. Post, 137 
 App. Div. 648, 122 N. Y. S. 292; 
 Ransom v. Ransom, 147 App. Div. 
 835, 133 N. Y. S. 173, reversing 70 
 Misc. 30, 127 N. Y. S. 1027. 
 
 Pennsylvania. — Chester County v. 
 Barber, 97 Pa. St. 455. 
 
 Texas. — Stewart v. Houston, etc., 
 R. Co., 62 Tex. 248. 
 
 West Virginia. — Dorr r. Camden, 
 55 W. Va. 226, 46 S. E. 1014, 65 
 L.R.A. 348. 
 
 Mutual Mistake. — Where an attor- 
 ney and client, under the belief that 
 a homestead entry contained valua- 
 ble timber land, agreed that for a 
 certain fee the former should contest 
 the entry, and the agreement gave 
 the client the right to rescind if upon 
 a, cruise the land did not show 10,- 
 000,000 feet, the agreement was unen- 
 forceable against the client, there 
 being no timber on the land, even 
 though the client did not have it 
 cruised, for the timber was the sub- 
 ject-matter of the contract, and the 
 parties having by mutual mistake 
 contracted with respect to a n(mex- 
 isting subject-matter, the agreement 
 was without consideration. Kelsey i . 
 Mackay, 65 Wash. 116, 117 Pac. 714. 
 
 l' Judah V. Vincennes University, 
 23 Ind. 273. 
 
744 CONTRACTS FOE COMPENSATION. [§ 430 
 
 performed.*' The burden is on the attorney to show that the 
 client was sufficiently advised and informed." 
 
 § 430. Contract Must Be Understood by Client. — It is 
 
 the duty of an attorney to have his contracts with his client clear- 
 ly and definitely stated,^" so that the client may fully compre- 
 hend them, not only in language, but also in spirit, legal conse- 
 quences, and practical results ; * and this is especially true where 
 from the client's age, infirmities, or ignorance, the necessity of 
 such distinctness is self-evident.* Where the contract is fairly 
 and reasonably susceptible of two constructions, and the one mind 
 assents to it upon the one construction, and the other upon the 
 other construction, there is no contract between the parties; and 
 where such a writing exists between attorney and client, it is the 
 duty of the attorney to inform the client of the fact of its suscep- 
 tibility of two constructions, and to learn, definitely and clearly, 
 his client's views before proceeding further.* Thus where the 
 terms of a contract for services between client and attorney were 
 ambiguous and indefinite in their consequences to the client, sus- 
 
 18 White V. Whaley, 40 How. Pr. client had been acted upon by the 
 
 (N. Y.) 353; Johnson v. Mann, 72 parties for nearly twenty years, the 
 
 Wash. 651, 131 Pac. 213. court refused to disturb it. Smith 
 
 Win re Mayer, 84 Hun 539, 32 N. v. Thompson, 7 B. Hon. (Ky.) 305. 
 
 Y. S. 850; Blaikie v. Post, 137 App. A failure by a client to object to 
 
 Div. 648, 122 N. Y. S. 292; Haight his attorney's bill for services until 
 
 V. Moore, 37 Super. Ct. (N. Y.) 161. nine months after rendered is not 
 
 20 See supra, § 419. See also Reyn- unreasonable, where other attorneys 
 
 olds V. Sorosis Fruit Co., 133 Cal. employed by the client had been try- 
 
 625, 66 Pae. 21. ing to see the attorney and secure a 
 
 1 California. — Reynolds v. Sorosis satisfactory explanation, and where 
 
 Fruit Co., 133 Cal. 625, 66 Pac. 21. the attorney could not have changed 
 
 Illinois. — People's Casualty, etc., his position to his injury. Tate v. 
 
 Co. V. Darrow, 70 111. App. 22, af- Field, 60 N. J. Eq. 42, 46 Atl. 952. 
 
 firmed 172 111. 62, 49 N. E. 1005. « Brock v. Barnes, 40 Barb. (N. Y.) 
 
 New York. — Brock v. Barnes, 40 521. 
 
 Barb. 521; Blaikie v. Post, 137 App. 8 Reynolds v. Sorosis Fruit Co., 133 
 
 Div. 648, 122 N. Y. S. 292. Cal. 625, 66 Pae. 21; People's Casual- 
 
 Tennessee. — Planters' Bank v. Horn- ty, etc., Co. v. Darrow, 70 111. App. 22, 
 
 berger, 4 Coldw. 531. affirmed 172 111. 62, 49 N. E. 1005; 
 
 Long Acquiescence. — Where a con- Planters' Bank o. Hornberger, 4 
 
 tract as to fees between attorney and Coldw. (Tenn.) 531. 
 
431] 
 
 CONTRACTS FOE COMPENSATION. 
 
 745 
 
 ceptible of unconscionable advantage on the part of the attorney, 
 and, if enforced, of injury to the client, it was held that the con- 
 tract would be set aside, and the attorney be allowed only the 
 reasonable value of his services.* 
 
 § 431. Unconscionable Contracts. — Where a contract of 
 employment between attorney and client is procured by unfair 
 means, and the compensation therein fixed is so unreasonably ex- 
 cessive as to amount to an extortion, or to evince a purpose on the 
 part of the attorney to obtain an undue advantage of the client, the 
 contract will be deemed to be an unconscionable one,* and may be 
 set aside on the client's application ; ® the attorney being allowed 
 only the reasonable value of the services rendered by him in good 
 
 * Planters' Bank v. Hornberger, 4 
 Coldw. (Tenn.) 531. 
 
 B United States. — Taylor v. Bemiss, 
 110 U. S. 42, 3 S. Ct. 441, 28 U. S. 
 (L. ed.) 64; Herman v. Metropolitan 
 St. E. Co., 121 Fed. 184; MuUer v. 
 Kelly, 125 Fed. 213, 60 C. C. A. 170. 
 
 Connecticut. — Grievance Commit- 
 tee V. Ennia, 84 Conn. 594, 80 Atl. 
 767. 
 
 Illinois. — Pratt v. Kerns, 123 III. 
 App. 86. 
 
 lovxt. — Donaldson v. Eaton, 136 la. 
 650, 114 N. W. 19, 125 Am. St. Eep. 
 275, 14 L.R.A.(N.S.) 1168. 
 
 Kentucky. — Henry v. Vance, 111 
 Ky. 72, 63 S. W. 273, 23 Ky. L. Eep. 
 491. 
 
 Maryland. — Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 Missouri. — Ball v. Reyburn, 136 
 Mo. App. 546, 118 S. W. 524. 
 
 New York. — Hitchings v. Van 
 Brunt, 5 Abb. Pr. N. S. 272; More- 
 house V. Brooklyn Heights R. Co., 185 
 N. Y. 520, 7 Ann. Cas. 377, 78 N. E. 
 179, reversing 102 App. Div. 627, 92 
 N. Y. S. 1134; In re Pieris, 82 App. 
 
 Div. 466, 81 N. Y. S. 927, affirmed 176 
 N. Y. 566, 68 N. E. 1123; Burke v. 
 Baker, 111 App. Div. 422, 97 N. Y. S. 
 768, affirmed 188 N. Y. 561, 80 N. E. 
 1033; In re Bensel, 68 Misc. 70, 124 
 N. Y. S. 726; Ransom v. Ransom, 70 
 Misc. 30, 127 N. Y. S. 1027; Eysaman 
 V. Nelson, 79 Misc. 304, 140 N. Y. S. 
 183. 
 
 Tennessee. — Cooper v. Bell, 153 S. 
 W. 844. 
 
 Washington.— Schultheia v. Nash, 
 27 Wash. 250, 67 Pac. 707. 
 
 "The word 'unconscionable' has 
 frequently been applied to contracts 
 made by lawyers for what were 
 deemed exorbitant contingent fees. 
 But by that nothing more has been 
 meant than that the amount of the 
 fee, standing alone and unexplained, 
 may be sufficient to show that an un- 
 fair advantage was taken of the 
 client or, in other words, that a legal 
 fraud was perpetrated upon him." 
 McCoy V. Gas Engine, etc., Co., 135 
 App. Div. 771, 119 N. Y. S. 864. 
 
 6 Poison V. Young, 37 la. 196 ; Mason 
 V. Ring, 2 Abb. Pr. N. S. (N. Y.) 322. 
 
746 
 
 CONTEACTS FOE COMPENSATIOIT. 
 
 [§ 432 
 
 faith.' In such cases the burden is on the attorney to show that 
 the contract was free from fraud, undue influence, or exorbitant 
 demand.* The court will not, of course, interfere with lawful con- 
 tracts for compensation in which the charge made is not out of 
 proportion with the services rendered.' A client who discharges 
 his attorney and substitutes another, and thereafter, finding that 
 the services of the first attorney were necessary by reason of his 
 special fitness, re-employs him under a written contract for a con- 
 tingent fee, cannot thereafter complain that the attorney drove a 
 hard bargain.^" 
 
 § 432. Time of Making Contract as Affecting its Validity. 
 
 — It is universally conceded that the principles stated in the 
 preceding sections under this subdivision ^^ apply with full force 
 and vigor to all such contracts for compensation as are entered 
 into between attorney and client after the establishment, and 
 
 7 Jenkins v. Dodge, 11 B. Mon. 
 (Ky.) 178; Colgan v. Jones, 44 N. J. 
 Eq. 274, 18 Atl. 55; Turnbull v. Banks, 
 22 App. Div. 508, 48 N. Y. S. 40. 
 
 Where a deed by a client executed 
 as compensation for his attorney's 
 services is set aside because of undue 
 influence, it should be allowed to 
 stand as security for what is actually 
 due. Mason v. Ring, 2 Abb. Pr. N. S. 
 (N. Y.) 322. 
 
 8 Wagner v. Phillips, 78 N. J. Eq. 
 33, 78 Atl. 806; Newman v. Daven- 
 port, 9 Baxt. (Tenn.) 538; McMahon 
 V. Smith, 6 Heisk. (Tenn.) 167; 
 Cullop V. Leonard, 97 Va. 256, 33 
 S. E. 611. 
 
 Question of Fact, — Whether a con- 
 tract is unconscionable is a question 
 of fact, depending on the character of 
 the claim and the amount of services 
 necessarily rendered in its prosecu- 
 tion. Morehouse v. Brooklyn Heights 
 R. Co., 185 N. Y. 520, 7 Ann. Cas. 377, 
 78 N. E. 179, reversing 102 App. Div. 
 627, 92 N. Y. S. 1134. 
 
 9 Ball V. Reyburn, 136 Mo. App. 546, 
 118 S. W. 524. 
 
 Where a contract is free from 
 fraud, and not so excessive as to 
 evince a purpose on the part of the 
 attorney to obtain an undue ad- 
 vantage of his client, it cannot be 
 said, as a matter of law, to be uncon- 
 scionable merely because the amount 
 of compensation provided for appears 
 to be unusually large. Weeks v. 
 Gattell, 125 App. Div. 402, 109 N. Y. 
 S. 977, affirmed 193 N. Y. 681, 87 
 N. E. 1129; In re Fitzsimons, 174 N. 
 Y. 15, 66 N. E. 554; Morehouse v. 
 Brooklyn Heights R. Co., 185 N. Y. 
 520, 7 Ann. Cas. 377, 78 N. E. 179, 
 reversing 102 App. Div. 627, 92 N. Y. 
 S. 1134; Ransom v. Cutting, 188 N. Y. 
 447, 81 N. E. 324. 
 
 10 Burke v. Baker, 111 App. Div. 
 422, 97 N. Y. S. 768, affirmed 188 N. 
 Y. 561, 80 N. E. 1033. 
 
 11 §§ 428-431. 
 
432] 
 
 CONTRACTS FOE COMPENSATION. 
 
 747 
 
 during the continuance, of the professional relation; ^* and that, 
 as to these, it will require the most convincing proof of good 
 faith on the part of the attorney, and of full knowledge of the 
 terms of the contract, and entire freedom of action, on the part 
 of his client, before a court will sanction the agreement." So 
 where an attorney, during the continuance of the fiduciary rela- 
 tion, procures from his client a contract for greater compensation 
 than that originally agreed upon, the transaction will be deemed 
 presumptively void.^* In either case, if the amount fixed is 
 
 l^ Alabama. — Lecatt v. Sallee, 3 
 Port. 115, 29 Am. Dec. 249 ; Dickinson 
 V. Bradford, 59 Ala. 581, 31 Am. Rep. 
 23. 
 
 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. E. 797. 
 
 loiaa. — Bolton v. Daily, 48 la. 348. 
 
 Kentucky. — Bibb v. Smith, 1 Dana 
 580. 
 
 New York. — Whitehead v. Kennedy, 
 69 N. Y. 462, affirming, 7 Hun 230. 
 
 Ohio. — Carlton v. Dustin, 9 Ohio 
 Dec. (Reprint) 51, 10 Cine. L. Bui. 
 294. 
 
 Tennessee. — Phillips v. Overton, 4 
 Hayw. 291; Rose v. Mynatt, 7 Yerg. 
 30. 
 
 Virginia. — Thomas v. Turner, 87 
 Va. 1, 12 S. E. 149, 668. 
 
 A Missouri statute provides, in 
 effect, that in all suits in equity and 
 actions at law, it shall be lawful for 
 an attorney, either before or after a 
 suit is brought, to contract with his 
 client for a certain percentage of the 
 proceeds of the client's suit or action 
 or the settlement of it, either before 
 the institution of the action or at any 
 stage thereafter. Beagles v. Robert- 
 son, 135 Mo. App. 306, 115 S. W. 1042. 
 
 13 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. E. 797; Shirls; v. 
 Neible, 156 Ind. 66, 59 N. E. 281, 83 
 Am. St. Rep. 150. 
 
 Maryland. — ^Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 New Jersey. — Brown v. Bulkley, 14 
 N. J. Eq. 451. 
 
 New York. — Evans v. Ellis, 5 Den. 
 640. 
 
 li Alabama. — Lecatt v. Sallee, 3 
 Port. 135, 29 Am. Dec. 249; Dickin- 
 son V. Bradford, 59 Ala. 581, 31 Am. 
 Rep. 23; White v. ToUiver, 110 Ala. 
 300, 20 So. 97. 
 
 Arkansas. — ^Marshall v. Dossett, 57 
 Ark. 93, 20 S. W. 810. 
 
 Illinois. — Hughes v. Zeigler, 69 111. 
 38 ; Dyer v. Sutherland, 75 111.' 583. 
 
 Keutucky. — Bibb v. Smith, 1 Dana 
 580. 
 
 Minnesota. — Farmer v. Stillwater 
 Water Co., 108 Minn. .41, 121 N. W. 
 418. 
 
 Mississippi. — Nathan v. Halsell, 91 
 Miss. 785, 45 So. 856. 
 
 New York. — Haight v. Moore, 37 
 Super. Ct. 161; Blaikie v. Post, 137 
 App. Div. 648, 122 N. Y. S. 292. 
 
 Tennessee. — Planters' Bank v. Horn- 
 berger, 4 Coldw. 531 ; Rose v. Mynatt, 
 7 Yerg. 30; McMahan v. Smith, 6 
 Heisk. 167; Newman v. Davenport, 9 
 Baxt. 538. 
 
 Texas. — Waterbury v. Laredo, 68 
 Tex. 565, 5 S. W. 81; Kahle v. Plum- 
 mer, 74 S. W. 786. 
 
748 
 
 COJSTTEACTS FOE COMPENSATIOIT. 
 
 [§ 432 
 
 exorbitant and objection has been made by the client, the attorney 
 will be limited to reasonable compensation for the services ren- 
 dered." 
 
 But these rules were not intended to prevent clients from con- 
 tracting for the attorney's services in connection with business 
 other than that in which he was originally retained ; ^* nor do 
 they apply where the contract has been fully performed, and the 
 client, being sui juris and informed as to the business transacted, 
 and in all other respects on equal terms, and dealing at arm's 
 
 Vermont. — Mott v. Harrington, 12 
 Vt. 199. 
 
 Virginia. — Thomas v. Turner, 87 
 Va. 1, 12 S. E. 149, 668. 
 
 West Virginia. — Keenan v. Scott, 
 64 W. Va. 137, 61 S. E. 806. 
 
 15 England. — Walmesley v. Booth, 2 
 Atk. 27. 
 
 Alabama. — Dickinson v. Bradford, 
 59 Ala. 581, 31 Am. Kep. 23; Yonge 
 V. Hooper, 73 Ala. 119; White v. Tolli- 
 vcr, 110 Ala. 300, 20 So. 97; Kidd v. 
 Williams, 132 Ala. 140, 31 So. 458, 56 
 L.E.A. 879. 
 
 Arkansas. — Marshall v. Dossett, 57 
 Ark. 93, 20 S. W. 810. 
 
 Illinois. — Elmore v. Johnson, 143 
 111. 513, 32 N. E. 413, 36 Am. St. Rep. 
 415, 21 L.R.A. 366. 
 
 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. E. 797; Shirk v. 
 Neible, 156 Ind. 66, 59 N. E. 281, 83 
 Am. St. Rep. 150. 
 
 Iowa. — Poison v. Young, 37 la. 196; 
 Bolton V. Daily, 48 la. 348. 
 
 Massachusetts. — Bar Assoc, of Bos- 
 ton V. Hale, 197 Mass. 423, 83 N. E, 
 885. 
 
 New Jersey. — Colgan v. Jones, 44 
 N. J. Eq. 274, 18 Atl. 55; Porter v. 
 Bergen 54 N. J. Eq. 405, 34 Atl. 1067. 
 
 New York. — Blaikie v. Post, 137 
 App. Div. 648, 122 N. Y. S. 292. 
 
 Tennessee. — Phillips v. Overton, i 
 
 Hayw. 291; Rose v. Mynatt, 7 Ycrg. 
 30; Newman v. Davenport, 9 Baxt. 
 538; Planters' Bank v. Hornberger, 4 
 Coldw. 531. 
 
 Texas. — Waterbury v. Laredo, 68 
 Tex. 565, 5 S. W. 81. 
 
 Vermont. — ^Mott v. Harrington, 12 
 Vt. 199. 
 
 Virginia. — Thomas v. Turner, 87 
 Va. 1, 12 S. E. 149, 668. 
 
 West Virginia. — Keenan v. Scott, 
 64 W. Va. 137, 61 S. E. 806. 
 
 16 Waterbury v. Laredo, 68 Tex. 565, 
 5 S. W. 81. 
 
 Thus where the attorney of a cor- 
 poration is employed at a salary 
 which, as also his term of employment, 
 may be changed at the option of the 
 corporation, there is nothing illegal or 
 improper in his making a contract 
 with the corporation for a special fee 
 in a. special case; no undue influence, 
 persuasion, or misrepresentation being 
 used by him. Bartlett v. Odd-Fellows' 
 Sav. Bank, 79 Cal. 218, 21 Pac. 743, 12 
 Am. St. Rep. 139. 
 
 Where a contract had been made 
 between an attorney at law and an 
 intestate for a fixed fee, and subse- 
 quently, the attorney made a new bar- 
 gain with the representatives of the 
 estate by which there was substituted 
 for the fixed fee, a contingent fee of 
 ten per cent of the amount recovered. 
 
§ 433] CONTEACTS FOR COMPENSATION. 749 
 
 length with his attorney, voluntarily stipulates with him for 
 compensation for his services." 
 
 Some cases maintain that the obligation of the attorney to show 
 that the contract is fair and reasonable does not apply to contracts 
 of retainer whereby the relation is established,'' especially where 
 the attorney openly assumes a hostile attitude toward the pro- 
 spective client,'^ because, it is claimed, the fiduciary relation does 
 not exist until the contract has been made, and, therefore, the 
 parties are on an equal footing and acting at arm's length.^" So, 
 it has been held that the affirmance, during the existence of the 
 professional relation, of the original contract of employment, was 
 not objectionable.' But this view seems to overlook, not only the 
 general rules governing dealings between attorney and client,^ 
 but also the fact that the relation of attorney and client arises 
 concurrently with the execution of the contract of employment, 
 and requires good faith on the part of the attorney in so advising 
 the prospective client that he may act intelligently,' and in dis- 
 closing to him such facts as may be material for consideration in 
 determining whether or not he should enter into the contract.* 
 
 Contracts in Contravention of Public Policy. 
 
 § 433. In General. — A contract of employment between at- 
 torney and client which is in violation of public policy or good 
 
 it was held that the second agreement Wisconsin. — Doekery v. McLellan, 
 
 was valid. Goldthwaite v, Whitney, 93 Wis. 381, 67 N. W. 733. 
 
 50 Fed. 668. 19 Cooley v. Miller, 156 Cal. 510, 105 
 
 " Kidd V. Williams, 132 Ala. 140, Pac. 981. 
 
 31 So. 458, 56 L.R.A. 879 ; Ward v. 20 Cooley v. Miller, 156 Cal. 510, 105 
 
 Yancey, 78 111. App. 368; McElrath v. Pac. 981; Cliflford v. Braun, 71 App. 
 
 Dupuy, 2 La. Ann. 521. Div. 432, 75 N. Y. S. 856; Doekery v. 
 
 18 California.— Cooley v. Miller, 156 McLellan, 93 Wis. 381, 67 N. W. 733. 
 
 Cal. 510, 105 Pac. 981. l Elmore v. Johnson, 143 111. 513, 32 
 
 Eentuclcy. —'Rast v. Larue, 4 Litt. N. E. 413, 36 Am. St. Rep. 415, 21 
 
 412, 14 Am. Dec. 172. L.R.A. 366; Zogbaun v. Parker, 66 
 
 Massachusetts. — ^Bar Assoc, v. Hale, Barb. (N. Y.) 341. 
 
 197 Mass. 423, 83 N. E. 885. 2 See supra, §§ 152-163. 
 
 'New Yor/i;.— Clifford v. Braun, 71 » Manley v. Felty, 146 Ind. 194, 45 
 
 App. Div. 432, 75 N. Y. S. 856; Title N. E. 74. See also supra, §§ 155. 
 
 Guarantee & Trust Co. v. Sternberg, * See supra, § 429. See also supra, 
 
 119 App. Div. 28, 103 N. Y. S. 857. § 155. 
 
750 
 
 CONTEACTS FOE COMPENSATION. 
 
 [§ 433 
 
 morals is void, and no recovery may be had thereunder.* Where 
 the tendency of a contract is necessarily to induce the doing of 
 matters which are opposed to public policy and good morals, 
 that fact may be considered in determining its validity, and if 
 that is its necessary tendency to an appreciable degree, the con- 
 tract will be void whether it induced the prohibited acts or not.® 
 Thus an attorney cannot recover under a contract for the col- 
 lection of gambling debts,' or for giving such advice to a client 
 as would enable, if not induce, him to elude the process of the law, 
 as, for instance, advice given to an officer which is calculated to 
 induce him to violate his duty.' Likewise as to an agreement 
 looking to securing the favor of witnesses against the client in a 
 criminal prosecution ; ^ and so as to a contract for services to be 
 rendered in influencing a public official to grant government 
 contracts to particular persons.^" And where the amount of 
 an attorney's fee has been fixed by statute, it has been held 
 that an agreement to take a greater fee than that so fixed is in 
 
 B Connecticut. — Treat v. Jones, 28 
 Conn. 334. 
 
 Illinois. — Elmore v. Johnson, 143 
 111. 513, 32 N. E. 413, 36 Am. St. 
 Rep. 401, 21 L.R.A. 366; Strong v. 
 International, etc.. Union, 183 111. 97, 
 55 N. E. 675, 47 L.R.A. 792. 
 
 Iowa. — Boardman v. Thompson, 25 
 la. 487 ; Adye v. Hanna, 47 la. 264, 29 
 Am. Rep. 484; Jewel v. Neidy, 61 la. 
 300, 16 N. W. 141; Hyatt v. Burling- 
 ton C. R. Co., 68 la. 662, 27 N. W. 
 815; Donaldson v. Eaton, 136 la. 650, 
 114 N. W. 19, 125 Am. St. Rep. 275, 
 14 L.R.A.(N.S.) 1168. 
 
 Indiana.- — McCabe v. Britton, 79 
 Ind. 224. 
 
 Massachusetts. — Thurston v. Perci- 
 val, 1 Pick. 415; Barry v. Capen, 151 
 Mass. 99, 23 N. E. 725, 6 L.R.A. 808. 
 
 Minnesota. — Gammons v. Johnson, 
 69 Minn. 488, 72 N. W. 563 ; Gammons 
 V. Gulbranson, 78 Minn. 21, 80 N. W. 
 779. 
 
 Michigan. — Jordan V. Westerman, 
 
 62 Mich. 170, 28 N. W. 826, 4 Am. St. 
 Rep. 836. 
 
 Missouri. — Duke v. Harper, 66 Mo. 
 51, 27 Am. Rep. 314; MacDonald v. 
 Wagner, 5 Mo. App. 56. 
 
 Neiv York. — Delahunty v. Canfield, 
 118 App. Div. 883, 103 N. Y. S. 939. 
 
 Tennessee. — ^Newman v. Davenport, 
 9 Baxt. 542. 
 
 Virginia. — Thomas v. Turner, 87 
 Va. 1, 12 S. E. 149, 668. 
 
 West Virginia. — Lane v. Black, 21 
 W. Va. 617; Lewis v. Broun, 36 W. 
 Va. 1, 14 S. E. 444; Keenan v. Scott, 
 64 W. Va. 137, 61 S. E. 800. 
 
 6 Barry v. Capen, 151 Mass. 99, 23 
 N. E. 725, 23 L.R.A. 735. 
 
 'Delahunty v. Canfield, 118 App. 
 Div. 883, 103 N. Y. S. 939. 
 
 8 Arrington v. Sneed, 18 Tex. 135. 
 
 9 Bailey v. Devine, 123 Ga. 653, 51 
 S. E. 603, 107 Am. St. Rep. 153. 
 
 10 Newman v. Davenport, 9 Baxt. 
 (Tenn.) 542, 
 
433] 
 
 CONTEACTS FOE COMPENSATION. 
 
 751 
 
 contravention of public policy.^* But the fact that an attorney 
 renders illegal services will not of itself avoid the contract where 
 the consideration of the client's promise required only the per- 
 formance of legal services.** 'Nov will the fact that the client 
 
 11 Where a statute fixes the maxi- 
 mum allowance^ for attorney fees for 
 the collection of certain claims at 
 fifteen per cent, and a claimant agreed 
 in writing with an attorney to give 
 him a certain percentage of the 
 amount that should be allowed by the 
 Court of Claims in addition to the fif- 
 teen per cent which the court was to 
 allow, such contract is void because in 
 violation of the policy of the act of 
 Congress which impliedly prohibits 
 contracts for a larger amount than 
 specified therein. Lynch v. Pollard, 
 26 Tex. Civ. App. 103, 62 S. W. 945, 
 following Tanner v. U. S., 32 Ct. CI. 
 192, and Ball v. Halsell, 161 U. S. 72, 
 16 S. Ct. 554, 40 U. S. (L. ed.) 622. 
 Compare, as authority to the con- 
 trary, the case of Davis v. Com., 164 
 Mass. 241, 41 N. E. 292, 30 L.R.A. 
 743, wherein It was held that an agent 
 employed by the state of Massachu- 
 setts to collect a claim against the 
 United States due as a return of direct 
 taxes, was entitled to recover, not- 
 withstanding that the act of Congress, 
 under which the return was made, 
 provided that no part of the money 
 appropriated for that purpose should 
 he paid to "any attorney or agent 
 under any contract for services" made 
 between the state and such agent or 
 attorney. 
 
 An agreement to pay a certain per 
 cent of the claims for damages done 
 by Confederate cruisers, as compensa- 
 tion for collecting them, is not void, 
 as conflicting with act of Congress of 
 June 23, 1874, providing for an allow- 
 
 ance of fees of attorney for owners of 
 such claims, and declaring void all 
 other liens or assignments for such 
 services. Grapel o. Hodges, 112 N. Y. 
 419, 20 N. E. 542, affirming 49 Hun 
 107, 1 N. Y. S. 823. 
 
 An agreement made a fortnight be- 
 fore the treaty of Washington of 1871, 
 and by which the owners of a ship 
 and cargo taken by the armed rebel 
 cruiser Florida employed a person, 
 whether an attorney at law or not, to 
 use his best eiforts to collect their 
 "claim arising out of the capture," 
 and authorized him to employ such 
 attorneys as he might think fit to 
 prosecute it, and promised to pay him 
 "a compensation equal to twenty-five 
 per cent of whatever sum shall be 
 collected on the said claim," applies to 
 a sum awarded to them by the court 
 of commissioners of Alabama claims, 
 established by the act of June 23, 
 1874, i;. 459; and is not affected by 
 section 18 of that act, providing that 
 that court should allow, out of the 
 amount awarded on any claim, rea- 
 sonable compensation to the counselor 
 and attorney for the claimant, and 
 issue a warrant therefor, and that all 
 other liens or assignments, either ab- 
 solute or conditional, for past or fu- 
 ture services about any claim, made 
 or to be made before judgment in that 
 court, should be void. Bachman v. 
 Lawson, 109 U. S. 659, 3 S. Ct. 479, 27 
 U. S. (L. ed.) 1067. 
 
 W Barry v. Capen, 151 Mass. 99, 23 
 N. E. 725, 6 L.E.A. 808. 
 
752 
 
 CONTEACTS FOE COMPENSATION. 
 
 [§ 434 
 
 believed that the attorney ■would act unlawfully render the con- 
 tract for compensation void, unless the attorney agreed so to 
 act.^' A valid contract for compensation will not be abrogated 
 by an attempt to merge it in a void contract.^* Where the con- 
 tract is reduced to writing, and is not so ambiguous or technical 
 as to require explanation, it is the duty of the court to determine 
 as a matter of law whether it contravenes public policy or not; 
 but where the terms and conditions of such agreement are in dis- 
 pute, and must be determined upon conflicting evidence, the ques- 
 tion must be submitted to the jury with proper instructions.^' 
 Contracts for contingent fees are no longer considered unlawful *° 
 excepting where, in some jurisdictions, the attorney agrees to 
 pay the costs and expenses,*'' or to act gratuitously in the event 
 of failure,** or to forbid settlement by the client.*' 
 
 § 434. As Dependent on Nature of Services Rendered. -^ 
 
 While it is true that an attorney may contract and recover for 
 professional services rendered in court, or before a government 
 department, or legislative body,^" he cannot lawfully agree to do 
 
 13 Mulligan v. Smith, 32 Colo. 404, 
 76 Pac. 1063. 
 
 llMcCurdy v. Dillon, 135 Mich. 678, 
 98 N. W. 746, 10 Detroit Leg. N. 927. 
 
 "Mulligan v. Smith, 32 Colo. 404, 
 76 Pac. 1063. 
 
 16 See supra, § 386. 
 
 IT See siipra, § 389. 
 
 18 See supra, § 388. 
 
 19 See infra, % 435. And see also, 
 supra, § 390. 
 
 aoMcBratney v. Chandler, 22 Kan. 
 692, 31 Am. Rep. 213 ; Stroemer v. 
 Van Orsdel, 74 Neb. 132, 303 N. W. 
 1053, 4 L.Il.A.(N.S.) 212, affirmed on 
 rehearing 74 Neb. 143, 107 N. W. 125, 
 4 L.E.A.(N.S.) 218. 
 
 Employment to Secure Pardon. — 
 "There was nothing unlawful or op- 
 posed to public policy in simply em- 
 ploying the plaintiff to endeavor, by 
 proper means, to secure a pardon. 
 
 Chadwick v. Knox, 31 N. H. 226, 64 
 Am. Dec. 329; Formby v. Pryor, 15 
 Ga. 258; Bremsen v. Engler, 49 Super. 
 Ct. (N. Y.) 172. The grounds upon 
 which the constitutional power to 
 pardon may be exercised are not de- 
 fined in the constitution; but among 
 the considerations which might prop- 
 erly be brought to the attention of the 
 governor, and influence his action, are 
 some which suggest the propriety of 
 employing the professional services of 
 an attorney for this purpose, and 
 from the mere fact of an attorney being 
 employed to solicit the pardon of a 
 convict it is not to be legally inferred 
 that an unlawful course of conduct 
 was intended. For instance, it would 
 be proper and often expedient, that an 
 attorney at law examine the case upon 
 which the conviction was based, to 
 see whether, notwithstanding the final 
 
§ 434] 
 
 COWTEACTS FOE COMPENSATION'. 
 
 753 
 
 anything which interferes with the due administration of jus- 
 tice,' or the general welfare of the state and of society." Thus a 
 contract whereby an attorney undertakes to procure the settlement 
 of a criminal charge is contrary to the policy of the law and, 
 therefore, unenforceable, especially where the attorney's com- 
 pensation is dependent on success ; ' nor should an attorney con- 
 tract for compensation contingent on the conviction of one charged 
 with crime.* So, contracts have been declared void, as against 
 public policy, where an attorney agreed to defend anticipated 
 prosecutions for prospective violations of the law,* and where he 
 
 judgment of the law, the case may not 
 be of such a nature as to justify the 
 exercise of the extraordinary power of 
 pardon. He may direct investigations 
 to the discovery of facts bearing upon 
 the question of guilt, not discover- 
 able at the time of the trial. The at- 
 tention of prosecuting officers and of 
 the judge who tried the cause may be 
 directed to newly discovered facts, or 
 to any of the circumstances of the 
 case, and their recommendation in 
 favor of a pardon may be sought. 
 Whatever considerations may properly 
 affect the action of the executive may 
 be urged upon his attention. Even 
 if there was any evidence in this case 
 which would have justified the conclu- 
 sion, as a matter of fact, that polit- 
 ical influence, or any unlawful means, 
 were expected to be exerted for the ac- 
 complishment of the end in view, no 
 case was presented justifying the 
 court in so declaring as a matter of 
 law." Moyer v. Cantieny, 41 Minn. 
 242, 42 N. W. 1060. 
 
 Compare Hatzfield v. Gulden, 7 
 Watts (Pa.) 152, 31 Am. Dec. 750. 
 wherein it was said: "A contract 
 founded upon a promise or engage- 
 ment to procure signatures and obtain 
 a pardon from the governor for one 
 convicted of a criminal offense and 
 Attys. at L. Vol. II.— 48. 
 
 sentenced to punishment, is unlawful 
 and cannot be enforced." 
 
 Employment of Official as Attorney 
 for Municipality. — Where one who is 
 mayor and councilman has, without 
 collusion or fraud, been employed as 
 an attorney to appear for the city and 
 defend a suit brought against it, there 
 is nothing in his official relations to 
 the city to preclude his recovering the 
 value of the services actually rendered 
 under such employment. Niles v. 
 Muzzy, 33 Mich. 61, 20 Am. Rep. 670. 
 
 1 Ormerod v. Dearman, 100 Pa. St. 
 561, 45 Am. Rep. 391. 
 
 2 Treat v. Jones, 28 Conn. 334. 
 Contract to Procure Discharge of 
 
 Drafted Man. — In Bowman v. Coff- 
 roth, 59 Pa. St. 19, it was held that a 
 contract to procure the discharge of 
 a drafted man was against public 
 policy and void, whether the compen- 
 sation for the services was fixed or 
 contingent. 
 
 3 Ormerod v. Dearman, 100 Pa. St. 
 561, 45 Am. Eep. 391. 
 
 *See Price v. Caperton, 1 Duv. 
 (Ky.) 208, wherein, however, compen- 
 sation was allowed. 
 
 6 Bowman v. Phillips, 41 Kan. 364, 
 21 Pac. 230, 13 Am. St. Rep. 292, 3 
 L.R.A. 631. 
 
754 
 
 COHTKACTS FOE COMPENSATION. 
 
 [§ 435 
 
 agreed to procure, or to endeavor to procure, the enactment of a 
 particular law." There is nothing necessarily inconsistent with 
 the interests of justice in the acceptance of a retainer which will 
 require the attorney to advocate views of the law different from 
 those maintained by him on other occasions.' 
 
 § 435. Contracts Restricting Settlement by Client. — 
 
 Public policy forbids that an attorney at law should so arrange 
 with his clients for an interest in the subject-matter of the litiga- 
 tion as to preclude the latter from compromising or settling the 
 cause with the adverse party without the attorney's consent.* The 
 
 CTriat v. Child, 21 Wall. 441, 22 
 U. S. (L. ed.) 623; Globe Works v. 
 U. S. 45 Ct. CI. 497; In re Knapp, 59 
 How. Pr. (N. Y.) 367, 8 Abb. N. Cas. 
 308; Clippenger v. Hepbaugh, 5 W. 
 & S. (Pa.) 315; Ormerod i>. Dearman, 
 100 Pa. St. 561, 45 Am. Kep. 391. 
 
 Contract to Procure Suspension of 
 Law. — A contract by an attorney to 
 secure the suspension for a specified 
 time of a statute prohibiting the sale 
 of intoxicating liquor is void, and he 
 cannot recover the agreed compensa- 
 tion for so doing, although the only 
 acts performed by him were the per- 
 fectly legal ones of agreeing to de- 
 fend any prosecution brought under 
 the statute. Arlington Hotel Co. v. 
 Ewing, 124 Tenn. 536, Ann. Cas. 
 1913A 121, 138 S. W. 954, 38 L.R.A. 
 (N.S.) 842. 
 
 7 An attorney at law ought not to 
 accept a, retainer in a case when he 
 believes that the law is against his 
 client. It is not his duty, in order to 
 subserve the interest of his client, to 
 misstate the law and tlie facts, and if 
 if he be satisfied that the client cannot 
 recover except by perversion of the 
 law and the facts, the attorney ought 
 not to take the case. But the fact 
 that an attorney has, under a prior 
 
 retainer, advocated views of the law 
 and facts different from those upon 
 which his client rests his case, or has 
 officially, as a judge or officer of the 
 government, held a different view of 
 the law and the rights of the parties, 
 will not of itself disqualify him from 
 accepting a retainer. An attorney has 
 the right and privilege, possessed by 
 all men and all officers and judges, to 
 change his views upon the law and 
 the facts of a ease, when reason re- 
 quires it. It would be absurd to say 
 that a lawyer or judge, having once 
 expressed an opinion upon legal ques- 
 tions, shall never change it, and that 
 a judicial or official decision will for- 
 ever bind the person announcing it. 
 Prom the nature of legal questions 
 which always depend upon the com- 
 bination of facts for their correct de- 
 cision, it is to be expected that law- 
 yers will not always, in their solution, 
 apply the same principles or reason- 
 ing. Smith V. C. & N. W. E. Co., 60 
 la. 515, 15 N. W. 291. 
 
 8 Arkansas. — Davis v. Webber, 66 
 Ark. 190, 49 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 Illinois. — North Chicago St. E. Co. 
 V. Ackley, 171 111. 100, 49 N. E. 222, 
 44 L.H.A. 177 ; Cameron v. Borger, 200 
 
435], 
 
 CONTEACTS FOE COMPENSATION. 
 
 755 
 
 reason of this rule is that the law not only does not encourage liti- 
 gation, but, on the contrary, it favors amicable settlements between 
 the parties where they are fairly and honestly brought about.® 
 The whole contract is affected by the invalidity of a stipulation 
 
 111. 84, 65 N. E. 690, 93 Am. St. Rep. 
 165, affirming 102 111. App. 649; 
 Granat v. Kruse, 114 111. App. 488. 
 
 Indiana. — Davis v. Chase, 159 Ind. 
 242, 64 N. E. 88, 853, 95 Am. St. Rep. 
 294. 
 
 Iowa. — Ellwood v. Wilson, 21 Iowa 
 523; Boardman v. Thompson, 25 Iowa 
 487; Kauffman v. Phillips, 154 Iowa 
 542, 134 N. W. 575. 
 
 Kamsas. — Kansas City El. R. Co. v. 
 Service, 77 Kan. 316, 94 Pac. 262, 14 
 L.R.A.(]Sr.S.) 1105. 
 
 Kentucky. — Newport Rolling Mill 
 Co. V. Hall, 147 Ky. 598, 144 S. W. 
 760. 
 
 Minnesota. — Gammons v. Johnson, 
 69 Minn. 488, 72 N. W. 563. See also 
 Huber v. Johnson, 68 Minn. 74, 70 N. 
 W. 806, 64 Am. St. Rep. 456; Ander- 
 son V. Itasca Lumber Co., 86 Minn. 
 480, 91 N. W. 12, 291; Burho v. Car- 
 michiel, 117 Minn. 211, Ann. Cas. 
 1913D 305, 135 N. W. 386. 
 
 Mississippi. — See Mosely v. Jam- 
 ison, 71 Miss. 456, 14 So. 529. 
 
 Nebraska. — Williams v. Miles, 63 
 \eb. 851, 89 N. W. 455. 
 
 New Jersey. — Weller v. Jersey City, 
 etc., R. Co., 68 N. J. Eq. 659, 6 Ann. 
 Cas. 442, 61 Atl. 459. 
 
 New York. — Lee v. Vacuum Oil Co., 
 126 jST. Y. 579, 27 N. E. 1018; Peri v. 
 Xew York Cent., etc., R. Co., 152 N. 
 Y. 521, 46 N. E. 849; Fischer-Hansen 
 I . Brooklyn Heights R. Co., 173 N. Y. 
 492, 66 N. E. 395; In re Snyder, 190 
 N. Y. 66, 13 Ann. Cas. 441, 82 N. E. 
 742, 123 Am. St. Rep. 533. Compare 
 Matter of Fernbacher, 18 Abb. N. Cas. 
 
 1; Syme v. Terry, etc., Co., 125 App. 
 Div. 610, 110 N. Y. S. 25. 
 
 OWo.— Key v. Vattier, 1 Ohio 132; 
 Lewis V. Lewis, 15 Ohio 715; Penn- 
 sylvania Co. V. Lombardo, 49 Ohio St. 
 1, 29 N. E. 573, 14 L.R.A. 785 ; Davy 
 V. Fidelity, etc., Ins. Co., 78 Ohio St. 
 256, 85 N. E. 504, 125 Am. St. Rep. 
 694, 17 L.R.A.(N.S.) 443; Emslie v. 
 Ford Plate Glass Co., 25 Ohio Cir. Ct. 
 Rep. 548. 
 
 Oregon. — Jackson v. Stearns, 48 
 Ore. 25, 84 Pac. 798, 5 L.R.A. (N.S.) 
 390. 
 
 Pennsylvania. — See Murray's Es- 
 tate, 2 Pa. Dist. Ct. 681. 
 
 South Oofcotn."— Howard v. Ward, 
 139 N. W. 771. 
 
 Utah. — Potter v. Ajax Min. Co., 22 
 Utah 273, 61 Pac. 999. 
 
 In MHsconsin a settlement by the 
 client without the attorney's consent, 
 contrary to a stipulation in the con- 
 tract of employment, has been upheld, 
 but the decision was based solely on 
 the ground that a party having an 
 unassignable cause of action cannot 
 before verdict give his attorney an in- 
 terest therein. Kusterer v. Beaver 
 Dam, 56 Wis. 471, 14 N. W. 617, 43 
 Am. Rep. 725. 
 
 9 Arkansas. — Davis v. Webber, 66 
 Ark. 190, 49 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 Illinois. — Cameron v. Boeger, 200 
 111. 84, 65 N. E. 690, 93 Am. St. Rep. 
 165, affirming 102 111. App. 649; 
 Pratt V. Kerns, 123 111. App. 86. 
 
 Iowa. — Ellwood v. Wilson, 21 la. 
 523. 
 
756 
 
 CONTEACTS FOE COMPENSATION. 
 
 [§ 435 
 
 restricting the client's right to settle,^" unless, of course, the other 
 provisions are separate and distinct therefrom; if they are, they 
 may be enforced.^' In Missouri it is held that an agreement of 
 the kind under consideration may or may not be condemned, as 
 against public policy, according to the circumstances of the case; 
 each case must be judged in the light of its own facts. *^ In Cali- 
 fornia, stipulations forbidding settlement by the client without the 
 attorney's consent are held to be valid. '^ A similar rule prevails 
 in Texas." The voidability of contracts forbidding settlement 
 
 Minnesota. — Gammons v. Johnson, 
 76 Minn. 76, 78 N. W. 1035. 
 
 Missouri. — Wright v. Kansas City, 
 etc., E. Co., 141 Mo. App. 518, 126 S. 
 W. 517. 
 
 New Jersey. — Weller v. Jersey 
 City, etc., E. Co., 68 N. J. Eq. 659, 6 
 Ann. Cas. 442, 61 Atl. 459. 
 
 Oregon. — Wagner v. Goldschmidt, 
 51 Ore. 63, 93 Pac. 689. 
 
 10 Davis V. Webber, 66 Ark. 190, 49 
 S. W. 822, 74 Am. St. Rep. 81, 45 
 L.E.A. 196; Davis v. Chase, 159 Ind. 
 242, 64 N. E. 88, 853, 95 Am. St. Eep. 
 294; Kansas City El. R. Co. v. Serv- 
 ice, 77 Kan. 316, 94 Pac. 262, 14 
 L.R.A.(N.S.) 1105. In re Snyder, 
 190 N. Y. 66, 13 Ann. Cas. 441, 82 N. 
 E. 742, 123 Am. St. Eep. 53,3, 14 
 L.R.A.(N.S.) 1101. 
 
 11 Granat v. Kruse, 114 111. App. 
 488; Anderson v. Itasca Lumber Co., 
 86 Minn. 480, 91 N. W. 12, 291; How- 
 ard V. Ward, (S. D.) 139 N. W. 771; 
 Potter V. Ajax Min. Co., 22 Utah 273, 
 61 Pac. 999. 
 
 Thus where a contract of retainer 
 between attorney and client provided 
 that the attorney, as compensation for 
 prosecuting the claim, should be en- 
 titled to receive forty per cent of 
 any compromise or settlement before 
 judgment, or, after judgment, forty 
 per cent of any verdict or award, etc.. 
 
 and in a subsequent article of the con- 
 tract, the client agreed not to settle 
 or compromise the claim with any 
 person or corporation without the 
 consent in writing of the attorney, 
 and that if such settlement were 
 made without the attorney's consent, 
 the client should pay to the attorney 
 such part of the settlement as was 
 thereinbefore agreed to be the at- 
 torney's share as compensation for 
 services rendered; and the defendant 
 settled with the client after issue 
 joined, ignoring the rights of the at- 
 torney, it was held that the two 
 clauses of the contract were separate 
 and distinct, and that even though 
 the latter were invalid as against 
 public policy in binding the client not 
 to settle, the prior clause fixing the 
 amount of the attorney's compensa- 
 tion in ease of settlement by the 
 client was still binding, since the 
 settlement was in fact made after is- 
 sue joined. Syme v. Terry, etc., Co., 
 125 App. Div. 610, 110 N. Y. S. 25. 
 
 18 Lipscomb v. Adams, 193 Mo. 530, 
 91 S. W. 1046, 112 Am. St. Eep. 500; 
 Beagles v. Robertson, 135 Mo. App. 
 306, 115 S. W. 1042. 
 
 13 Hoffman v. Vallejo, 45 Cal. 564. 
 
 1* Ft. Worth, etc., E. Co. v. Carlock, 
 33 Tex. Civ. App. 202, 75 S. W. 931; 
 Powell V. Galveston, etc., R. Co., 
 
§ 436] CONTEACTS FOE COMPENSATION. 757 
 
 by the client has been considered heretofore in connection with the 
 discussion of champerty, barratry, and maintenance.** 
 
 § 436. Solicitation of Business. — It has been held that an 
 attorney who goes to the scene of a disaster and solicits persons 
 having rights of action for injuries or death caused by such dis- 
 asters to intrust him with the prosecution of their actions, is guilty 
 of unprofessional conduct which bars his right to collect fees when 
 such suits are compromised by the parties.** The reason given for 
 this holding is that the conduct of the attorney was "contrary to 
 the character of the profession and opposed to a sound public 
 policy and to a proper and decorous administration of the law." 
 So, where an attorney enters into a systematic scheme to hunt 
 up claims, or supposed claims, upon which the original holders 
 would probably never have asserted any right or brought any 
 action, and to stir up wholesale litigation, and induce the bring- 
 ing of actions by agreeing to prosecute suits at his own expense, 
 indemnify his clients against the costs and expenses of litigation, 
 accept for his compensation a share of what might be recovered, 
 and agree not to charge anything for his services unless he was 
 successful, his conduct is so clearly against public policy that the 
 courts ought not to enforce the contract, or aid him in recovering 
 the fruits of such a speculative and vicious scheme." So, also a 
 contract between an attorney at law and one who is not such an 
 attorney, by which the latter agrees to procure the employment of 
 the former by third persons for the prosecution of litigation, and 
 also to assist in looking after and procuring witnesses whose testi- 
 mony is to be used therein, in consideration of a share of the fees 
 which the attorney shall receive for his services, is against public 
 policy and void. Provisions of this nature have received statutory 
 recognition in some jurisdictions.** Advertising for business has 
 
 (Tex.) 78 S. W. 975. See also Gal- S. W. 178, 119 Am. St. Rep. 1003, 
 
 veston, etc., E. Co. v. Ginther, 96 9 L.R.A.(N.S.) 282. 
 
 Tex. 295, 72 S. W. 166, affirming 30 "Gammons v. Johnson, 76 Minn. 
 
 Tex. Civ. App. 161, 70 S. W. 96. 76, 78 N. W. 1035. 
 
 16 See supra, § 390. l' California. — Alpers v. Hunt, 86 
 
 18 IngersoU v. Coal Creek Coal Co., Cal. 78, 24 Pac. 846, 21 Am. St. Eepi 
 
 117 Tenn. 263, 10 Ann. Cas. 829, 98 17, 9 L.E.A. 483. 
 
758 
 
 CONTRACTS FOE COMPENSATION. 
 
 [§ 437 
 
 also been censured by the courts,^' and in some instances has been 
 considered sufficient cause for disbarment.^" This subject has 
 also been considered, heretofore, in connection with champerty, 
 barratry, and maintenance.* A statute in JSTew York applying in- 
 directly to the solicitation of business by making illegal all con- 
 tracts by which a contingent fee is to be shared with a third per- 
 son not a lawyer, renders the contract of retainer void where such 
 an agreement has been entered into.* 
 
 § 437. Contracts Affecting Marital Relations. — A con- 
 tract for compensation will, as a general rule, be declared void as 
 against public policy where its purpose is the facilitating or pro- 
 curement of a divorce,* separation,* or annulment of marriage ; * 
 and this is particularly true where the attorney's compensation is 
 dependent on success, and is to be paid out of the amount allowed 
 in the suit for alimony.* Thus, an attorney will not be allowed to 
 
 Illinois. — ^Vocke v. Peters, 58 111. 
 App. 338. 
 
 Massachusetts. — ^Allen v. Hawks, 13 
 Pick. 79. 
 
 Minnesota. — Holland v. Sheehan, 
 108 Minn. 362, 17 Ann. Cas. 687, 122 
 N. W. 1, 23 L.E.A.(N.S.) 510. 
 
 Nebraska. — Langdon v. Conlin, 67 
 Neb. 243, 2 Ann. Cas. 834, 93 N. W. 
 389, 108 Am. St. Rep. 643, 60 L.R.A. 
 429. 
 
 New York. — N. Y. Penal Laws, § 
 274 (N. Y. Code Civ. Pro. § 74) ; In 
 re Clark, 184 N. Y. 222, 77 N. E. 1; 
 Oisher v. Lazzarone, 61 Hun 623 
 mem., 15 N. Y. S. 933. 
 
 19 People V. MaeCabe, 18 Colo. 186, 
 32 Pao. 280, 36 Am. St. Rep. 270, 19 
 L.R.A. 231; People v. Taylor, 32 
 Colo. 250, 75 Pac. 914; People v. 
 Goodrich, 79 111. 148. 
 
 20 See infra, § 845. 
 
 1 See supra, § 380. And see gen- 
 erally supra, §§ 379-399. 
 
 2 In re Welch, 156 App. Div. 470, 
 141 N. Y. S. 381. 
 
 3 California. — Newman v. Freitas, 
 129 Cal. 283, 61 Pac. 907, 50 L.R.A. 
 548. 
 
 Indiana. — McCabe v. Britton, 79 
 Ind. 224. 
 
 Iowa. — Barngrover v. Pettigrew, 
 128 la. 533, 104 N. W. 904, 111 Am. 
 St. Rep. 206, 2 L.R.A. (N.S.) 260; 
 Donaldson v. Eaton, 136 la. 650, 114 
 N. W. 19, 125 Am. St. Rep. 275, 14 
 L.R.A.(N.S.) 1168. 
 
 Michigan. — Jordan B. Westerraan, 
 62 Mich. 170, 28 N. W. 826, 4 Am. St. 
 Rep. 836. 
 
 *Van Vleek v. Van Vleck, 21 App. 
 Div. 272, 47 N. Y. S. 470; Matter of 
 Brackett, 114 App. Div. 257, 259, 260, 
 99 N. Y. S. 802. 
 
 B Donaldson v. Eaton, 136 la. 650, 
 114 N. W. 19, 125 Am. St. Rep. 275, 
 14 L.R.A.(N.S.) 1168. 
 
 ^Alabama. — Brindley v. Brindley, 
 121 Ala. 429, 25 So. 751. 
 
 Arfcamsos.— McConnell v. McCon- 
 nell, 98 Ark. 193, 136 S. W. 931, 33 
 L.R.A.(N.S.) 1074. 
 
§ 438] CONTEACTS FOE COMPENSATION. 759 
 
 recover from his client for services "in the business of securing 
 evidence" for a contemplated suit to obtain a separation of the 
 client from bis wife,' or for services wbicb have a tendency to pre- 
 vent a reconciliation between busband and wife.' While the in- 
 validity of contracts affecting the marriage relation has been 
 placed on various grounds, such as champerty and maintenance, 
 good morals, and the nonassignability of the sum allowed by the 
 court to the wife in such cases,^ the best reason on which their 
 invalidity has been predicated seems to be that public policy is 
 interested in maintaining the family relation; that the interests 
 of society require that those relations shall not be lightly severed, 
 and that families shall not be broken up for inadequate causes or 
 from unworthy motives ; and that where differences have arisen 
 which threaten disruption, public welfare and the good of society 
 demand a reconciliation, if practicable or possible. Therefore, 
 contracts which tend directly to prevent such reconciliation, or to 
 bring about the alienation of husband and wife, are deemed to be 
 void." 
 
 Recovery on Quantum Meruit for Services Performed under Void 
 or Voidable Contracts. 
 
 § 438. Generally. — The general rule undoubtedly is that an 
 attorney is not precluded from recovering compensation for val- 
 
 Coii/ormio.— Sharon v. Sharon, 75 533, 104 N. W. 904, 111 Am. St. Rep. 
 
 Cal. 1, 16 Pac. 345; White v. White, 206, 2 L.R.A.(N.S.) 260; Succession 
 
 86 Cal. 212, 24 Pac. 1030; Newman v. of Elliot, 28 La. Ann. 183. 
 
 Freitas, 129 Cal. 283, 61 Pac. 907, 50 8 Jordan v. Westerman, 62 Mich. 
 
 L.R.A. 548. 170, 28 N. W. 826, 4 Am. St. Rep. 
 
 gam. — Jordan v. Westerman, 836. 
 
 62 Mich. 170, 28 N. W. 826, 4 Am. St. 9 Newman v. Freitas, 129 Cal. 283, 
 
 Rep. 836; McCurdy v. Dillon, 135 61 Pac. 907, 50 L.R.A. 548; Jordan i'. 
 
 Mich. 678, 98 N. W. 746. Westerman, 62 Mich. 170, 28 N. W. 
 
 tiew Jersey. — Lynde v. Lynde, 64 826, 4 Am. St. Rep. 836; McCurdy r. 
 
 N. J. Eq. 736, 52 Atl. 694, 97 Am. St. Dillon, 135 Mich. 678, 98 N. W. 746; 
 
 Rep. 692, 58 L.R.A. 471. Lynde v. Lynde, 64 N. J. Eq. 736, 52 
 
 'New yor/c— Van Vleck v. Van Atl. 694, 97 Am. St. Rep. 692, 58 
 
 Vleck, 21 App. Div. 274, 47 N. Y. S. L.R.A. 471. 
 
 470; Matter of Brackett, 114 App. 10 Jordan v. Westerman, 62 Mich. 
 
 Div. 257, 99 N. Y. S. 802. 170, 28 N. W. 826, 4 Am. St. Rep. 
 
 TBarngrover v. Pettigrew, 128 la. 836. 
 
760 
 
 CONTRACTS FOE COMPENSATION. 
 
 [§ 438 
 
 uable services by the mere fact that such services were rendered 
 under a void or voidable contract. There can, of course, be no 
 recovery on the contract, but vi^here it is not inherently malum in 
 se or m.alum prohibitum, the attorney may recover the reasonable 
 value of his services on a quantum meruit}^ Where, however, the 
 contract is of such a nature as to be inherently obnoxious, the law 
 will not imply a promise to remunerate the attorney for any serv- 
 ices rendered thereunder ; ^* thus in some jurisdictions no re- 
 covery may be had for services performed under a champertous 
 agreement.^* So, it has been held that an attorney cannot recover 
 under a contract whereby he agreed to pay the costs and expenses 
 of litigation ; " or where he agrees to procure or facilitate the 
 
 11 Alabama. — Holloway v. Lowe, 1 
 Ala. 246; Elliott v. McClelland, 17 
 Ala. 206; Goodman v. Walker, 30 
 Ala. 482, 68 Am. Dee. 134. 
 
 Arkansas. — Davis v. Webber, 66 
 Ark. 190, 49 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 California. — Buck v. Eureka, 124 
 Cal. 61, 56 Pac. 612. 
 
 Illinois. — Granat v. Kruse, 114 111. 
 App. 488, writ of error dismissed in 
 213 111. 328, 72 N. E. 744; Dreyfuss 
 V. Jones, 116 111. App. 75; Papineau 
 V. White, 117 111. App. 51. 
 
 Indiana. — Zeigler v. Mize, 132 Ind. 
 403, 31 N. E. 945; French v. Cun- 
 ningham, 149 Ind. 632, 49 N. E. 797. 
 
 Iowa. — Hyatt v. Burlington, etc., 
 R. Co., 68 la. 662, 27 N. W. 815. 
 
 Kentucky. — Rust v. Larue, 4 Litt. 
 412, 14 Am. Dec. 172; Caldwell v. 
 Shepherd, 6 T. B. Mon. 389; Bowser 
 V. Patrick, 65 S. W. 824, 23 Ky. L. 
 Rep. 1578; Leonard v. Boyd, 71 S. 
 W. 508, 24 Ky. L. Rep. 1320. 
 
 Massachusetts. — Thurston v. Perei- 
 val, 1 Pick. 415. 
 
 Michigan.- — Cadman v. Markle. 76 
 Mich. 448, 43 N. W. 315, 5 L.R.A. 
 707; McCurdy v. Dillon, 135 Mich. 
 678, 98 N. W. 746. 
 
 Mirmesota. — Gammons v. Johnson, 
 69 Minn. 488, 72 N. W. 563. 
 
 Missouri. — Wright v. Kansas City, 
 etc., R. Co., 141 Mo. App. 518, 126 
 S. W. 517. 
 
 mew York. — In re Snyder, 190 N. 
 Y. 66, 13 Ann. Cas. 441, 82 N. E. 
 742, 123 Am. St. Rep. 533, 14 L.R.A. 
 (N.S.) 1101. 
 
 Utah. — ^Potter v. Ajax Min. Co., 
 22 Utah 273, 61 Pac. 999. 
 
 Wa^shington. — Atwood v. Sicade, 
 131 Pac. 850. 
 
 Wisconsin. — Stearns v. Felker, 28 
 Wis. 294. 
 
 12 Arlington Hotel Co. v. Ewing, 
 124 Tenn. 536, Ann. Cas. 1913A 121, 
 138 S. W. 954, 38 L.R.A. (N.S.) 842. 
 
 13 Butler V. Legro, 62 N. H. 350, 
 13 Am. St. Rep. 573. And as to 
 champerty, barratry, and mainte- 
 nance, see generally supra, §§ 379- 
 399. 
 
 l*Moreland v. Devenney, 72 Kan. 
 471, 83 Pac. 1097; Willemin v. Bate- 
 son, 63 Mich. 309, 29 N. W. 734; 
 Roller V. Murray, 112 Va. 780, Ann. 
 Cas. 1913B 1088, 72 S. E. 665, 38 
 L.R.A.(N.S.) 1202. See also supra, 
 § 389. 
 
 Contra. — Stearns v. Felker, 28 Wis. 
 
§ 438] 
 
 CONTEACTS FOE COMPENSATION. 
 
 761 
 
 procurement of a divorce, or a separation, or an annulment of 
 marriage. *° Nor can an attorney recover the reasonable value of 
 his services in prosecuting suits where the contract with the client 
 was not only chiampertous, but was a part of an unlawful and 
 vexatious scheme by which the litigation itself was worked up 
 and instigated." So, an attorney will be prevented from recover- 
 ing on a quantum meruit for services rendered under a contract 
 whereby he agreed to defend a client from future violations of the 
 penal laws.'" As to compensation for services rendered prior to 
 the making of the objectionable agreement, however, there is no 
 hindrance to a recovery.*' 
 
 594. See also Brush v. Carbondale, 
 229 111. 144, 11 Ann. Cas. 121, 82 
 N. E. 252. 
 
 IB Barngrover v. Pettigrew, 12S la. 
 533, 104 N. W. 904, 111 Am. St. Rep. 
 206, 2 L.E.A.(N.S.) 260; Donaldson 
 V. Eaton, 136 la. 650, 114 N. W. 19, 
 125 Am. St. Eep. 275, 14 L.R.A.(N.S.) 
 1168. And see supra, § 437. But 
 compare Crow v. Yocom, 11 Rob. 
 (La.) 506. 
 
 16 Gammons v. Johnson, 76 Minn. 
 76, 78 N. W. 1035. See also supra, 
 § 380. 
 
 The vice of such contracts lies 
 deeper and much further back than 
 merely entering into a champertous 
 agreement for compensation for law- 
 ful services performed in the prosecu- 
 tion of suits legitimately instituted. 
 Their illegality enters into the very 
 inception of the scheme by which the 
 litigation itself is instigated, and but 
 for which it would never have existed. 
 
 Even if the special written contracts 
 regarding compensation are set aside 
 or ignored, this original vice, in the 
 very inception of the scheme, would 
 still exist in full force. To hold that 
 a party can thus illegally stir up and 
 instigate litigation, and yet obtain 
 the benefits of it by ignoring the 
 special contracts, and bringing suit 
 upon a quantum meruit for services 
 performed in prosecuting the liti- 
 gation which he has unlawfully in- 
 stigated, would be a travesty on jus- 
 tice, and permit a party to do in- 
 directly what he cannot do directly. 
 Gammons v. Johnson, 76 Minn. 76, 
 78 N. W. 1035. 
 
 17 Bowman v. Phillips, 41 Kan. 
 364, 21 Pac. 230, 13 Am. St. Rep. 
 292, 3 L.R.A. 631. See also supra, 
 § 434. 
 
 18 Thurston v. Percival, 1 Pick. 
 (Mass.) 415; Lathrop v. Amherst 
 Bank, 9 Met. (Mass.) 489. 
 
CHAPTER XXL 
 
 AMOUNT, RETENTION, AND ALLOWANCE OF COMPENSATION, 
 TAXABLE COSTS, AND EXPENSES. 
 
 Under Express Contract. 
 
 439. Contract Controls. 
 
 440. Extra Compensation Denied. 
 
 441. Extra Compensation Allowed. 
 
 442. Amount Not Definitely Fixed. 
 
 443. Counsel Substituted by Original Attorney. 
 
 444. Associate or Additional Counsel. 
 
 445. Covenant in Mortgage Fixing Attorney Fee for Foreclosure. 
 
 446. Stipulation in Note Fixing Attorney Fee for Collection Thereof. 
 
 Under Implied Contract, 
 
 447. Reasonable Compensation Allowed. 
 
 448. What Are Reasonable Fees. 
 
 449. Matters Considered in Determining Reasonable Value of Services. 
 
 On Premature Termination of Employment Oenerally, 
 
 450. Performance Prevented by Client. 
 
 451. Performance Prevented by Substitution. 
 
 452. Impossibility of Performance. 
 
 453. Abandonment by Attorney. 
 
 454. Death of Attorney. 
 
 455. Death of Client. 
 
 On Settlement ty Client. 
 
 456. General Rule. 
 
 457. Rule where Compensation is Dependent on Success. 
 
 458. Fraudulent Settlements. 
 
 459. Settlement Provided for in Contract. 
 
 460. Liability of Adverse Party. 
 
 On Appointment to Serve Poor Persons. 
 
 461. In General. 
 
 762 
 
AMOUNT, ETC. OF COMPENSATION. 763 
 
 Under Bankruptcy Act. 
 
 \ 462. Allowance of Attorney Fees. 
 
 463. Fees of Bankrupt's Attorney. 
 
 464. Fees of Attorneys for Trustee and Receiver, 
 
 465. Fees of Attorneys for Creditors. 
 
 466. Fees Must Be Keasonable in All Cases. 
 
 467. Priority Rights. 
 
 468. Ee-examination of Fees Paid in Contemplation of Bankruptcy. 
 
 Apportionment of Fees, 
 
 469. Generally. 
 
 470. Under Agreement for Division of Fees. 
 
 Compensation of Law Partnerships. 
 
 471. Generally. 
 
 472. Effect of Dissolution. 
 
 473. On Winding up Business. 
 
 474. Services Performed in Individual Capacity. 
 
 475. Accounting. 
 
 Retention of Fees from Funds in Hand. 
 
 476. Generally. 
 
 Allowance of Counsel Fees in Equitable Proceedings. 
 
 477. Allowance from Funds Recovered. 
 
 478. When Allowance Will Be Denied. 
 
 479. In Partition Proceedings. 
 
 Allowance of Counsel Fees in Legal Proceedings. 
 
 480. Generally. 
 
 481. Proceedings for Collection of Taxes and Assessments. 
 
 482. In Actions on Injunction Bonds. 
 
 483. In Actions on Attachment Bonds. 
 
 Taxable Costs, Statutory Fees, and Expenses. 
 
 484. To whom Taxable Coats and Statutory Fees Belong. 
 
 485. Taxable Costs and Statutory Fees as Measure of Attorney's Compen- 
 
 sation. 
 
 486. Reimbursement of Expenses. 
 
764 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 439 
 
 Under Express Contract. 
 
 § 439. Contract Controls. — Where an attorney enters into 
 a valid contract with his client whereby the amount of the attor- 
 ney's compensation is definitely fixed, such contract will, of course, 
 be controlling in this respect; and the client is bound to pay, and 
 the attorney to receive as payment in full for his services, the sum 
 so stipulated.* 
 
 1 United States. — Wylle v. Coxe, 15 
 How. 415, 14 U. S. (L. ed.) 753; 
 Owen V. Dudley, 217 U. S. 488, 30 
 S. Ct. 602, 54 U. S. (L. ed.) 851, af- 
 firming 31 App. Cas. (D. C.) 177; 
 Salinger v. Mason, 194 Fed. 382, 114 
 C. C. A. 300. 
 
 Arkansas. — Davis v. Webber, 66 
 Ark. 190, 49 S. W. 822, 74 Am. St. 
 Rep. 81, 45 L.R.A. 196. 
 
 Colorado. — Hazeltine v. Brockway, 
 26 Colo. 291, 57 Pac. 1077; Foot v. 
 Smythe, 20 Colo. App. 320, 78 Pac. 
 619. 
 
 Georgia. — Bull v. St. John, 39 Ga. 
 78; Coker v. Oliver, 4 Ga. App. 728, 
 62 S. E. 483. 
 
 Illinois. — ^Hughes v. Zeigler, 69 111. 
 38; Elliott V. Rubel, 132 111. 9. 23 
 N. E. 400, reversing 30 111. App. 62; 
 Gorrell v. Payson, 170 111. 213, 48 
 N. E. 433, reversing 68 111. App. 641 ; 
 Calkins v. Pease, 125 111. App. 270. 
 
 Indiana. — Whinery v. Brown, 36 
 Ind. App. 276, 75 N. E. 605; Cordes 
 V. Bailey, 39 Ind. App. 83, 78 N. E. 
 678, 1060. 
 
 loiva. — Gaston v. Austin, 52 Iowa 
 35, 2 N. W. 609; Gillilland v. Brant- 
 rier, 145 Iowa 275, 121 N. W. 1047. 
 
 Kentucky. — ^Mcllvoy v. Russell, 12 
 S. W. 1067; Townsend v. Rhea, 38 
 S. W. 865, 18 Ky. L. Rep. 901. 
 
 Marylamd. — Etzel v. Duncan, 112 
 Md. 346, 76 Atl. 493. 
 
 Michigan. — Cavanaugh v. Robin- 
 son, 138 Mich. 554, 101 N. W. 824. 
 
 Mississippi. — Clifton v. Clark, 84 
 Miss. 795, 37 So. 746; Nathan v. 
 Halsell, 91 Miss. 785, 45 So. 856. 
 
 Missouri. — State v. Hawkins, 28 
 Mo. 366; Boyd v. G. W. Chase, etc., 
 Co., 135 Mo. App. 115, 115 S. W. 
 1052; Beagles v. Robertson, 135 Mo. 
 App. 306, 115 S. W. 1042; Bond v. 
 Sandford, 134 Mo. App. 477, 114 S. 
 W. 570. 
 
 'Nebraska. — In re Rapp, 77 Neb. 
 674, 110 N. W. 661. 
 
 New Jersey. — Scott t'. New York, 
 etc., Co., 79 N. J. L. 231, 75 Atl. 772. 
 
 New York. — In re Department of 
 Public Works, 167 N. Y. 501, 60 N. 
 E. 781, modifying 58 App. Div. 459, 
 69 N. Y. S. 413; Bassford v. Johnson, 
 172 N. Y. 488, 65 N. E. 260, modifying 
 71 App. Div. 617, 76 N. Y. S. 1009; 
 Batterson v. Osborne, 63 Hun 633 
 mem., 18 N. Y. S. 431; Jackson v. 
 Stone, 48 App. Div. 628, 64 N. Y. S. 
 820; Deering 17. Schreyer, 58 App. 
 Div. 322, 68 N. Y. S. 1015, reversed 
 on other grounds, 171 N. Y. 451, 64 
 N. E. 179; Werner v. Knowlton, 107 
 App. Div. 158, 94 N. Y. S. 1054; 
 Burke v. Baker, 111 App. Div. 422, 
 97 N. Y. S. 768, affirmed 188 N. Y. 
 561, 80 N. E. 1033; McDonald v. 
 De Vito, 118 App. Div. 566, 103 N. 
 Y. S. 508; Syme v. Terry, etc., Co., 
 125 App. Div. 610, 110 N. Y. S. 25; 
 
§ 439] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 765 
 
 This rule is equally effective where the amount of compensation 
 is to be a certain percentage of the sum recovered, or v^here the 
 attorney's right thereto, in whole or in part, is contingent on 
 success.* 
 
 It is immaterial that, in order to accomplish the purpose of his 
 employment, the attorney was obliged to render services which 
 
 Brackett v. Ostrander, 126 App. Div. 
 529, 110 N. Y. S. 779; In re Edge- 
 combe Eoad, 128 App. Div. 432, 112 
 N. Y. S. 845; In re Winkler, 154 App. 
 Div. 532, 139 N. Y. S. 755; Bogan 
 V. Wright, 22 Misc. 94, 48 N. Y. S. 
 546; Allen v. Flynn, 52 Misc. 121, 
 101 N. Y. S. 747; In re Knapp. 59 
 How. Pr. 367, 8 Abb. N. Caa. 308. 
 
 Oregon. — Bingham v. Salens, 15 
 Ore. 208, 14 Pac. 523, 3 Am. St. Rep. 
 152; Hamilton v. Holmes, 48 Ore. 
 453, 87 Pac. 154. 
 
 Pennsylvcmia. — McGee's Estarte, 205 
 Pa. St. 590, 55 Atl. 776. 
 
 Tennessee. — Pate v. Maples, 43 S. 
 W. 740. 
 
 Texas. — Thomas v. Morrison, 92 
 Tex. 329, 48 S. W. 500, modifying 
 46 S. W. 46; Texas Cent. R. Co. v. 
 Andrews, 28 Tex. Civ. App. 477, 67 
 S. W. 923. See also First Nat. Bank 
 V. Hodges, 62 S. W. 827. 
 
 Utah. — Potter v. Ajax Min. Co., 22 
 Utah 273, 61 Pac. 999. 
 
 Vermont. — Noble v. Bellows, 53 Vt. 
 527. 
 
 Washington. — Schultheis v. Nash, 
 27 Wash. 250, 67 Pac. 707; Carson 
 V. Fogg, 34 Wash. 448, 76 Pac. 112; 
 Cain V. Moore, 54 Wash. 627, 103 
 Pac. 1130. 
 
 West Virginia. — Camden v. McCoy, 
 48 W. Va. 377, 37 S. E. 637. 
 
 Wisconsin. — Cotzhauaen v. Central 
 Trust Co., 79 Wis. 613, 49 N. W. 
 158; Sheehy v. Duffy, 89 Wis. 6, 61 
 N. W. 295. 
 
 2 United States.— Rjaji v. Philadel- 
 phia, etc.. Coal, etc., Co., 189 Fed. 
 253. 
 
 Colorado. — Leitensdorfer v. King, 
 7 Colo. 436, 4 Pac. 37. 
 
 Georgia. — Coker v. Oliver, 4 Ga. 
 App. 728, 62 S. E. 483. 
 
 lotea. — Graham v. Dubuque Special- 
 ty Mach. Works, 138 la. 456, 114 
 N. W. 619, 15 L.R.A.(N.S.) 729. 
 
 Kansas. — Stevens v. Sheriff, 76 
 Kan. 124, 90 Pac. 799, 11 L.R.A. 
 (N.S.) 1153. 
 
 Kentucky. — Mcllvoy v. Russell, 12 
 S. W. 1067. 
 
 Louisiana. — ^Andirac v. Richardson, 
 125 La. 883, 51 So. 1024. 
 
 Missouri. — Humphreys v. McLaeh- 
 lan, 87 Miss. 532, 40 So. 151. 
 
 New Ycrk. — In re Fitzsimons, 174 
 N. Y. 15, 66 N. E. 554, reversing 
 77 App. Div. 345, 12 N. Y. Ann. Cas. 
 250, 79 N. Y. S. 194; Ransom v. 
 Cutting; 112 App. Div. 150, 98 N. Y. 
 S. 282, affirmed 188 N. Y. 447, 8] N. 
 E. 324; McDonald v. De Vito, 118 
 App. Div. 566, 103 N. Y. S. 508. 
 
 Ohio. — Hudson v. Sanders, 10 Ohio 
 Cir. Dec. 342, 19 Ohio Cir. Ct. 615. 
 
 Virginia. — McDonald v. Logan, 34 
 S. E. 490. 
 
 West Virginia. — Crumlish v. Shen- 
 andoah Valley R. Co., 40 W. Va. 627, 
 22 S. E. 90. 
 
 Under an agreement to pay an at- 
 torney one third of the recovery if 
 under $12,000, otherwise one fourth, 
 an attorney was held entitled to one 
 
766 
 
 OF COMPENSATION. 
 
 [§439 
 
 he had not anticipated,' or that the compensation fixed by the eon- 
 tract is inadequate,* or unreasonable.* The power of the courts 
 to reform contracts between attorney and his client is limited to 
 the duty of protecting the latter against the undue influence of 
 the former; they cannot increase the amount of compensation 
 agreed upon by the parties as the value of the attorney's services.' 
 Wor will the accrued right of the attorney to compensation be 
 affected by the assignment of the cause of action by the client to a 
 third person.' 
 
 The contract will not be binding, however, where it appears 
 to have been abandoned,' superseded,^ or substantially modified.*" 
 So, the client will not be bound by the contract where there has 
 been unfair dealing on the part of the attorney,** or where the con- 
 tract is tainted with any other illegality,*^ or where the parties 
 did not mutually understand the terms of the contract ; *' nor will 
 the attorney be held to an agreement which he was induced to 
 
 third, where a judgment for $11,500 
 was affirmed after interest had ac- 
 crued, so that the aggregate sum col- 
 lected exceeded $12,000. Sanders v. 
 Eiddick, (Tenn.) 156 S. W. 464. 
 
 As to the validity of contingent 
 fees generally, see supra, §§ 421-427. 
 
 3 Payne v. Davis County, 150 la. 
 597, 129 N. W. 823 ; Murray v. Trum- 
 bull, 62 Wash. 336, 113 Pae. 769. 
 
 ^Alabama. — Coopwood v. Wallace, 
 12 Ala. 790. 
 
 California. — Reynolds v. Sorosls 
 Fruit Co., 133 Cal. 625, 66 Pac. 21. 
 
 Kansas. — Topeka Water-Supply Co. 
 V. Hoot, 56 Kan. 187, 42 Pac. 715. 
 
 Kentucky. — Mcllvoy v. Russell, 24 
 S. W. 3. 
 
 Montana. — Walsh v. Helena School 
 Dist. 17 Mont. 413, 43 Pac. 180. 
 
 6 Fuller V. Stevens, (Ala.) 39 So. 
 623; Ingeraoll v. Morse, 33 Miss. 
 667; In re Eapp, 77 Neb. 674, 110 
 N. W. 661. 
 
 6 Lewis V. Yale, 4 Fla. 418. 
 'Randall v. Archer, 5 Fla. 438, 
 SHolladay's Case, 27 Fed. 830. 
 8 Brown v. Curtis, 111 la. 542, 82 
 N. W. 945. 
 
 10 Where an attorney agreed to eon- 
 duct a formal friendly suit to quiet 
 title for $150, and, after the defend- 
 ant filed a, cross-complaint claiming 
 title to the land, the suit ceased to 
 be friendly, whereupon the client told 
 the attorney to go ahead and fight the 
 suit to a finish, which he did through 
 two trials, there was a sufficient mod- 
 ification of the original employment 
 to warrant a recovery on a quantum 
 meruit. Tong v. Orr, 44 Ind. App. 
 681, 87 N. E. 147, rehearing denied, 
 44 Ind. App. 693, 88 N. E. 308. 
 
 11 See supra, §§ 428-432. 
 
 12 See supra, §§ 433-437. 
 "Cooper V. Bell, (Tenn.) 153 S. 
 
 W. 844. 
 
§ 440] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 767 
 
 make by the fraudulent representations of the client/* or to one 
 which the client has repudiated.^* 
 
 § 440. Extra Compensation Denied. — It is well settled that 
 a contract to render professional services for a fixed sum covers 
 all services which are ordinarily or necessarily incidental to the 
 proper performance of the duties so undertaken by an attorney; 
 and that, as to such services, no extra compensation can be recov- 
 ered.'* Thus as to services, in resisting an injunction, which were 
 necessarily incidental to an action to foreclose a mortgage.^' So, 
 frequently the contract of employment includes services rendered 
 on appeal, '' and thereafter ; '° and may even extend to the trial of 
 collateral suits.^" And a specified percentage of the "recovery" 
 
 li Fraud on Part of Client. — ^If an 
 attorney is induced by his client's 
 misrepresentations to undertake liis 
 case for a contingent fee, he may 
 treat the contract as a nullity, and 
 recover upon an implied promise to 
 pay him for services rendered. Evans 
 v. Bell, 6 Dana (Ky.) 479. 
 
 15 Where a client attempts to re- 
 pudiate an agreement under which 
 his attorney has acted in effecting 
 a settlement, and his obligation there- 
 on for services, the attorney is not 
 bound by the amount of compensation 
 stipulated, but is entitled to all his 
 services were worth. Foot v. Smythe, 
 20 Colo. App. 320, 78 Pae. 619. 
 
 16 United States. — Hughes v. Dun- 
 dee Mortg. Co., 140 U. S. 98, 11 S. 
 Ct. 727, 35 U. S. (L. ed.) 354; Page 
 V. Trutch, 5 Am. L. Eec. 155, 18 Fed. 
 Cas. No. 10,668. 
 
 California. — Reynolds v. Sorosis 
 Fruit Co., 133 Cal. 625, 66 Pac. 
 21. 
 
 Illinois. — Dyer v. Sutherland, 75 
 111. 583 ; Willard v. Pennsylvania Co., 
 140 111. App. 306. 
 
 louM. — Lindsay v. Carpenter, 90 
 la. 529, 58 N. W. 900. 
 
 Kentucky. — McKay v. Lancaster, 
 15 Ky. L. Rep. 159; Sparks v. Wal- 
 den, 79 S. W. 248, 25 Ky. L. Rep. 
 1937. 
 
 Mississippi. — ^Nathan v. Halsell, 91 
 Miss. 785, 45 So. 856. 
 
 New York. — In re Maxwell, 51 
 Hun 640 mem., 4 N. Y. S. 576 ; Welsh 
 V. Old Dominion Min., etc., Co., 56 
 Hun, 650, 10 N. Y. S. 174; In re 
 Bowles, 58 Hun 609, 12 N. Y. S. 468 ; 
 Batterson v. Osborne, 63 Hun 633 
 mem., 18 N. Y. S. 431; In re Schal- 
 ler, 10 Daly 57 ; In re Knapp, 59 
 How. Pr. 367, 8 Abb. N. Cas. 308. 
 
 Washington. — Niagara F. Ins. Co. 
 V. Hart, 13 Wash. 651, 43 Pac. 937. 
 
 17 Darrin v. Clay, 143 App. Div. 
 937 mem., 128 N. Y. S. 346. 
 
 18 Cavanaugh v. Robinson, 138 
 Mich. 554, 101 N. W. 824, 11 Detroit 
 Leg. N. 675; Niagara F. Ins. Co. i'. 
 Hart, 13 Wash. 651, 43 Pac. 937. 
 
 19 Tuttle V. Claflin, 88 Fed. 122, 59 
 U. S. App. 602, 31 C. C. A. 419. 
 
 20 Moses V. Bagley, 55 Ga. 283. 
 
768 
 
 [§ 441 
 
 limits the fee to that stipulated, though suit was necessary to make 
 the collection.^ 
 
 Nor can an attorney recover extra compensation for the per- 
 formance of unauthorized acts * or the employment of associate 
 counsel without the consent of the client.' It has also been held 
 that the defense of a county by an attorney, against a bill filed to 
 enjoin the issuance of bonds, was a matter "pertaining to the 
 building and construction of turnpikes or macadamized roads," 
 within the meaning of a contract with such county providing for a 
 certain fee for services in all matters pertaining to the building 
 of turnpikes or macadamized roads, and in all matters that may 
 come before the county board in relation thereto.* 
 
 § 441. Extra Compensation Allowed. — The mere fact that 
 an attorney performs professional services under a contract, where- 
 in the amount of compensation to be received by him is fixed, does 
 not, of course, preclude him from recovering for services which 
 were not contemplated by the contract of employment.* Thus, 
 
 1 Wolfe V. Mack, 81 Misc. 185, 142 
 N. Y. S. 433. 
 
 Z Baldwin v. School City, 73 Ind. 
 346; Timberlake v. Crosby, 81. Me. 
 249, 16 Atl. 896. 
 
 3 Hughes V. Zeigler, 69 111. 38; In 
 re Borkstrom, 63 App. Div. 7, 71 N. 
 Y. S. 451, affirmed 168 N. Y. 639, 61 
 N. E. 1127. See also supra, % 210. 
 
 * Lindsay v. Colbert County, 112 
 Ala. 409, 20 So. 637. 
 
 B United States. — Barcus v. Sher- 
 wood, 136 Fed. 184, 69 C. C. A. 200, 
 affirming 130 Fed. 364. 
 
 Alahama. — State Bank v. Martin, 
 4 Ala. 615; Humes v. Decatur Land 
 Improvement & Furnace Co., 98 Ala. 
 461, 13 So. 368. 
 
 California. — Mahoney v. Bergin, 41 
 Cal. 423. 
 
 Illinois. — Dyer v. Sutherland, 75 
 111. 583; Singer v. Steele, 125 111. 
 426, 17 N. E. 751 ; Sanders v. Seelye, 
 128 111. 631, 21 N. E. 601. 
 
 Indiana. — Judah v. Vincennes Uni- 
 versity, 16 Ind. 56; Cheek v. 
 Schwartz, 70 Ind. 339; United States 
 Mortg. Co. V. Henderson, 111 Ind. 
 24, 12 N. E. 88; Louisville, etc., E. 
 Co. v. Reynolds, 118 Ind. 170, 20 N. 
 E. 711; Ohio, etc., E. Co. v. Smith, 5 
 Ind. App. 36, 31 N. E. 371; Cordes 
 V. Bailey, 39 Ind. App. 83, 78 N. E. 
 678, 1060. 
 
 Massachusetts. — Pierce v. Parker, 
 121 Mass. 403. 
 
 MissoMri.— Comstock v. Flower, 109 
 Mo. App. 275, 84 S. W. 207; Bond 
 V. Sandford, 134 Mo. App. 477, 114 
 S. W. 570; EoUins v. Schawacker, 
 153 Mo. App. 284, 133 S. W. 409. 
 
 T^eio York. — In re Bowles, 58 Hun 
 609 mem., 12 N. Y. S. 468; Serat v. 
 Smith, 61 Hun 36, 15 N. Y. S. 330; 
 Allen V. Baker, 29 Misc. 337, 60 N. 
 Y. S. 472. 
 
 Pennsylvania. — Pike v. Zieglcr, 4 
 Kulp 441. 
 
§ 442] AMOUKT, ETC. OF COMPENSATION. 769 
 
 unless the terms of the contract preclude it, extra compensation 
 may be recovered for services rendered on appeal.® So, an attorney 
 who undertakes to foreclose a mortgage for a fixed compensation 
 if no defense is made, is entitled to a reasonable fee for prosecuting 
 against a vigorous defense.'' And an attorney agreeing, for a fixed 
 fee, to foreclose a mechanic's lien, and "to perform any and all 
 work necessary in and for the complete foreclosure" thereof, is not 
 required to defend, without additional compensation, a motion, 
 not based upon his errors, to vacate the judgment of foreclosure ob- 
 tained by him.' A contract for compensation for services to be 
 rendered in a dama,ge suit does not, as a matter of law, include 
 services rendered in assisting in the defense of criminal proceed- 
 ings, even though recovery in the damage suit is dependent on 
 the result of the criminal prosecution ;' nor do counsel who under- 
 take to defend a client upon a criminal accusation, thereby agree 
 to defend his bailors upon a scire facias on the recognizance.'" 
 Whether the services for which extra compensation is asked are 
 within the contract of employment is a question for the jury where 
 the evidence in relation thereto presents a conflict; '* but in the 
 absence of such a conflict, or inherent ambiguity, the construction 
 of the contract is, of course, for the court.'^ 
 
 § 442. Amount Not Definitely Fixed. — There are many 
 instances of valid contracts for compensation which, instead of 
 
 South Carolina. — Haines v. Wilson, dale, 35 Ind. 278; Calvert v. Coxe, 1 
 
 85 S. C. 338, 67 S. E. 311. Gill (Md.) 95; Taggart v. Hower, 
 
 South Dakota. — Cranmer v. Broth- (Pa.) 37 Atl. 13. 
 ers, 15 S. D. 234, 88 N. W. 105. 7 Murray v. Trumbull, 62 Wash. 
 
 Texas.— Kev i: Paschal, 1 Pcsey, 336, 113 Pac. 769. 
 Unrep. Cas. 692 ; Clarke v. Faver, 40 8 Cranmer v. Brothers, 15 S. D. 
 
 S. W. 1009. 234, 88 N. W. 105. 
 
 Washington. — Isham v. Parker, 3 9 Gorrell v. Payson, 170 111. 213, 
 
 Wash. 755, 29 Pac. 835. 48 N. E. 433, reversing 68 111. App. 
 
 West Virginia. — Watts v. West 641. 
 Virginia So. R. Co., 48 W. Va. 262, 37 lo Headley v. Good, 24 Tex. 232. 
 
 S. E. 700; Fisher v. Mylius, 62 W. "Beard v. Morgan, 71 111. App. 
 
 Va. 19, 57 S. E. 276. 564; Dodge v. Janvrin, 59 N. H. 16. 
 
 6 Sanders v. Seelye, 128 111. 631, l« Serat v. Smith, 61 Hun 36, 15 
 
 21 N. E. 601 ; Bartholomew v. Langs- N. Y. S. -330. 
 Attys. at L. Vol. II.— 49. 
 
770 AMOUNT, ETC. OF COMPENSATION. [§ 442 
 
 fixing a definite sum, provide for a "reasonable" remuneration," 
 or a "good" fee," or an amount "to be fixed by the client," " even 
 though such compensation is also dependent on success. *° A con- 
 tract between attorney and client for the rendition of legal services 
 in connection with an estate to which the client was an heir, pro- 
 viding that the attorney's compensation should "in no event be 
 more" than that received from other heirs similarly interested, nor 
 more than a certain per cent of the amount recovered for the client, 
 does not fix the amount of compensation, but merely imposes 
 maximum limits thereto, leaving the amount to be determined on a 
 quantum meruit^ within such limits.'" Nor does an agreement by 
 a lawyer that his charge for presenting a case on appeal would not 
 exceed a specified sum unless there was more in the case than he 
 then knew of, made on the representation of his client, who also 
 was an attorney, that only two questions were involved in the 
 appeal, prevent the lawyer from recovering extra compensation, 
 where six questions arose in the case instead of two, and were 
 briefed and argued by him.'* So where an attorney, in fixing his 
 fee, said to his client: "It may cost you three thousand dollars; 
 it may cost you five, with all expenses included," it was held that 
 this statement did not prove a contract that all the expenses of the 
 litigation should not exceed five thousand dollars.'' 
 
 iSAZofiamo.— state Bank v. Mar- 15 Roche v. Baldwin, 135 Cal. 522, 
 
 tin, 4 Ala. 615. 65 Pac. 459, 67 Pac. 903; In re Max- 
 
 Kentucky.—Nesbitt v. Whaley, 10 well, 51 Hun 640 mem., 4 N. Y. S. 
 
 Ky. L. Rep. 400 (abstract). 576; Tennant v. Fawcett, 94 Tex. 
 
 JIficft^(7ore.— Walbridge v. Barrett, HI- 58 S. W. 824, reversing 55 S. W. 
 
 118 Mich. 433, 76 N. W. 973, 5 De- ^^^' Howe v. Kenyon, 4 Wash. 677, 
 
 troit Leg. N. 362. 30 Pae. 1058. 
 
 ?/e6r(wfc(i.— Cressman v. Whitall, « The value of attorney's services 
 
 16 Neb. 592, 21 N. W. 458. '® "°* affected by a contingent agree- 
 
 „ ', ' „. ,T , -„ ment to charge only what they were 
 
 New Jersey. — Strong v. Mundy, 52 ,,,,.. . , 
 
 ■KT T -r. r,Z, „, .i, „-,, . reasonably worth if successful, and 
 
 N. J. Eq. 833, 31 Atl. 611, reversing ^,-., - , ,tt ,,. .j 
 
 ,„ ^- _ _ ', „„ ,„ ' „ nothing if unsuccessful. Walbridge 
 52 N. J. Eq. 744, 30 Atl. 322. -d xx ■.no i.». i. ^oo .,<, Z 
 
 ^ ' V. Barrett, 118 Mich. 433, 76 N. 
 
 New York.-Waihs v. Loubat, 2 ^ g^g^ 5 p^^^^;^ Leg. N. 562. 
 
 °®"- ^^'^- " Russell V. Young, 94 Fed. 45, 36 
 
 Tennessee. — Pate v. Maples, 43 S. C. C A 71 
 
 W- "^^^^ 18 Bond V. Sandford, 134 Mo. --\pp. 
 
 14 Fairbanks v. Weeber, 15 Colo. 477, 114 g. W. 570. 
 App. 268, 62 Pac. 368. 19 Dickerson v. Scheuer, 56 Super. 
 
§ 443] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 771 
 
 In all such instances, excepting, possibly, where "the client is 
 to fix the fee," *" there may be a recovery on a quantum meruit * 
 in accordance with the principles stated under the following sub- 
 division of this chapter.* 
 
 § 443. Counsel Substituted by Original Attorney. — 
 
 Where the original counsel substitutes another in his stead with^ 
 the knowledge of the client, who accepts the benefits of his services, 
 the substituted counsel is entitled to the amount of compensation 
 provided for in the contract between the client and the counsel 
 originally retained ; ' but, in the absence of a new agreement pro- 
 viding therefor, he cannot claim any more than the sum so stipu- 
 lated.* This rule does not apply, of course, to cases where the 
 client engages the services of another attorney who, subsequently, 
 has been substitiited as counsel of record in the case. In such cases 
 the new attorney is at liberty to make any agreement which he 
 might have made had he been selected originally.' 
 
 Ct. 605, 1 N. Y. S. 4] 9, affirmed 121 
 N. Y. 671, 24 N. E. 1094. 
 
 20 Where an attorney contracts to 
 serve his client for such a fee as the 
 client may think reasonable, and be 
 able to pay, the client, acting in good 
 faith and according to his ability, is 
 sole judge as to the reasonableness 
 of the fee and his ability to pay. 
 Howe V. Kenyon, 4 Wash. 677, 30 
 Pac. 1058. And see to the same ef- 
 fect: Roche V. Baldwin, 135 Cal. 
 522, 65 Pac. 459, 67 Pac. 903; In 
 re Maxwell, 51 Hun 640 mem., 4 N. 
 Y. S. 576; Tennant v. Fawcett, 94 
 Tex. Ill, 58 S. W. 824. 
 
 1 Fairbanks v. Weeber, 15 Colo. 
 App. 268, 62 Pac. 368. And see all 
 the oases cited throughout this sec- 
 tion. 
 
 Where » client agrees to pay his 
 attorney reasonable compensation for 
 his services, the question of what is 
 reasonable compensation is purely 
 one of fact upon which the client has 
 
 a constitutional right to take the 
 verdict of a jury, and the attorney's 
 only remedy is in an action at law 
 for a breach of the promise to pay. 
 Story V. Hull, 143 111. 506, 32 N. E. 
 265. 
 
 Where legal services have been per- 
 formed under a contract providing 
 that the fee should be such as any 
 gentleman of the profession should 
 consider reasonable, and the client 
 has refused to so submit the ascer- 
 tainment of the value of the services, 
 a recovery can be had on a quantum 
 meruit. State Bank v. Martin, 4 
 Ala. 615. 
 
 2 See infra, §§ 447-449. 
 
 3 Reese v. Resburgh, 54 App. Div. 
 378, 66 N. Y. S. 633. 
 
 *Enni8 v. Hultz, 46 la. 76; Hern- 
 don V. Lammers, (Tex.) 55 S. W. 414. 
 
 5 Cowles V. Thompson, 31 Neb. 479, 
 48 N. W. 145. 
 
 As to substitution generally, see 
 supra, §§ 143-150. 
 
712 
 
 AMOUN^T, ETC. OF COMPENSATION. [§§ 444, 445 
 
 § 444. Associate or Additional Counsel. — The agreement 
 for compensation between the client and his original counsel will 
 not bind additional or associate counsel subsequently employed 
 by the client, unless, of course, such other counsel agrees to have 
 his compensation so fixed. Counsel so retained are at liberty to 
 contract for the amount which they are to receive independently 
 of the agreement with the attorney first employed.* ISTor will the 
 fees of the original attorney be affected by the amount paid to such 
 associate or additional counsel.'' An agreement between the at- 
 torney of record and his associate as to the latter's fees is not bind- 
 ing on the client.* 
 
 § 445. Covenant in Mortgage Fixing Attorney Fee for 
 Foreclosure. — The general rule is that, in the absence of con- 
 trolling statutory regulation, a covenant in a mortgage fixing the 
 amount of an attorney fee for the foreclosure thereof, if not un- 
 reasonable, is binding on the parties ; ^ but in some jurisdictions 
 
 6 Gates V. McClenahan, (la.) 103 
 N. W. 969; Bissell v. Zorn, 122 Mo. 
 App. 688, 99 S. W. 458; Cowlea v. 
 Thompson, 31 Neb. 479, 48 N. W. 
 145; Goldthwaite v. Dent, 3 McCord 
 L. (S. C.) 296. 
 
 1 California. — Luco v. De Toro, 91 
 Cal. 405, 18 Pac. 866, 27 Pac. 1082. 
 
 Florida. — Randall v. Archer, 5 Fla. 
 438. 
 
 Minnesota.- — Moyer v. Cantieny, 41 
 Minn. 242, 42 N. W. 1060. 
 
 2fe«7 Yorh. — In re Hynes, 105 N. Y. 
 560, 12 N. E. 60. 
 
 Washington. — Isham v. Parker, 3 
 Wash. 755, 29 Pac. 835. 
 
 8 Harwood v. La Grange, 137 N. Y. 
 538, 32 N. E. 1000, reversing 62 Hun 
 619 mem., 16 N. Y. S. 689. 
 
 See also supra, § 210. 
 
 9 Dakota. — Hovey v. Edmison, 3 
 Dak. 449, 22 N. W. 594. 
 
 Illinois. — HefiFron v. Gage, 149 111. 
 182, 36 N. E. 569; Mulcahey v. 
 
 Strauss, 151 111. 70, 37 N. E. 702; 
 Primley v. Shirk, 163 111. 389, 45 N. 
 E. 247; Abbott v. Stone, 172 111. 634, 
 50 N". E. 328, 64 Am. St. Kep. 60; 
 Culver V. Brinkerhoff, 180 111. 548, 54 
 N. E. 585; Thornton v. Common- 
 wealth Loan, etc., Assoc, 181 111. 456, 
 54 N. E. 1037 ; Baker v. Jacobson, 183 
 111. 171, 55 N. E. 724; Baker v. Aal- 
 berg, 183 III. 258, 55 N. E. 672; Uedel- 
 hofen V. Mason, 201 111. 465, 66 N. E. 
 364; Gantzer v. Schmeltz, 206 111. 
 560, 69 N. E. 584; Rohrhof v. 
 Schmidt, 218 111. 585, 75 N. E. 1062; 
 Huber v. Brown, 243 111. 274, 90 N. 
 E. 748. 
 
 Iowa. — Mills County Nat. Bank v. 
 Perry, 72 la. 15, 33 N. W. 341, 2 Am. 
 St. Rep. 228. 
 
 Minnesota. — Griswold v. Taylor, 8 
 Minn. 342. 
 
 Nevada. — Cox v. Smith, 1 Nev. 161, 
 90 Am. Dec. 476; McLane v. Abrams, 
 2 Nev. 199. 
 
§ 445] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 773 
 
 such stipulations have been held to be invalid as opposed to public 
 policy." 
 
 What is an unreasonable amount depends on the facts presented 
 in each case ; thus fees of tvyo,*^ two and one-half,*^ five/' and even 
 ten ** per cent of the amount of the mortgage have been deemed 
 
 Permsylvania. — Warwick Iron Co. 
 V. Morton, 148 Pa. St. 72, 23 Atl. 
 1065; Walter V. Dickson, 175 Pa. St. 
 204, 34 Atl. 646. 
 
 South Carolina. — Bird v. Kendall, 
 62 S. C. 178, 40 S. E. 142. 
 
 Wisconsin. — Tallman v. Truesdell, 
 3 Wis. 443; Boyd v. Sumner, 10 Wis. 
 41; Rice v. Cribb, 12 Wis. 179; 
 Pierce v. Kneeland, 16 Wis. 672, 84 
 Am. Dec. 726. 
 
 Where attorney's fees for foreclos- 
 ing mortgages are received by the 
 client, the attorney may maintain an 
 action for them against the client. 
 Union Mut. L. Ins. Co. v. Buchanan, 
 100 Ind. 63. As to actions for com- 
 pensation generally, see infra, §§ 487- 
 571. 
 
 10 Arkansas. — Jarvis v. Southern 
 Grocery Co., 63 Ark. 225, 38 S. W. 
 148. 
 
 Kentucky. — Thomasson v. Town- 
 send, 10 Bush 114; Rilling v. Thomp- 
 son, 12 Bush 310; Kentucky ' Trust 
 Co. V. Louisville Third Nat. Bank, 
 106 Ky. 232, 50 S. W. 43; Pryse v. 
 People's Bldg., etc., Assoc, 41 S. W. 
 574; Southern Warehouse, etc., Co. v. 
 Mechanics' Trust Co., 56 S. W. 162. 
 
 Michigan. — Sage v. Riggs, 12 Mich. 
 313; Bullock v. Taylor, 39 Mich. 137, 
 33 Am. Rep. 356; Vosburgh v. Lay, 45 
 Mich. 455, 8 N. W. 91; Millard v. 
 Truax, 50 Mich. 343, 15 N. W. 501; 
 Wilkinson v. Baxter, 97 Mich. 536, 56 
 N. W. 931; Kittermaster v. Brossard, 
 105 Mich. 219, 63 N. W. 75, 55 Am. 
 St. Rep. 437. 
 
 Wo.— State v. Taylor, 10 Ohio 
 378; Shelton v. Gill, 11 Ohio 417; 
 Spalding v. Muskingum Bank, 12 
 Ohio 544; Martin v. Belmont Bank, 
 13 Ohio 250. 
 
 Oregon. — Balfour v. Davis, 14 Ore. 
 47, 12 Pac. 89. 
 
 . "Mclntire v. Yates, 104 111. 491; 
 Simon v. Haifleigh, 21 La. Ann. 607. 
 
 12 Abbott V. Stone, 172 111. 634, 50 
 N. E. 328, 64 Am. St. Rep. 60. 
 
 IS Avery u. Maude, 112 Cal. 565, 
 44 Pac. 1020; Goodwin v. Bishop, 145 
 111. 421, 34 N. E. 47 ; Hough v. Wells, 
 86 111. App. 186; Renshaw v. Rich- 
 ards, 30 La. Ann. 398; Levy v. Beas- 
 ley, 41 La. Ann. 832, 6 So. 630; 
 Grunewald v. Commercial Soap, etc.. 
 Manufactory, 49 La. Ann. 489, 21 So. 
 646; Robson v. Beasley, 118 La. 738, 
 43 So. 391. 
 
 1* Fechheimer v. Baum, 43 Fed. 
 719 ; Carhart v. Allen, 56 Fla. 763, 48 
 So. 47; McCall v. Walter, 71 Ga. 287; 
 Thornton v. Commonwealth Loan, 
 etc., Assoc, 181 111. 456, 54 N. E. 
 1037; Barnett v. Davenport, 40 111. 
 App. 57; Sharp v. Barker, 11 Kan. 
 381; Duhfi's Succession, 41 La. Ann. 
 209, 6 So. 502; Hansen v. Creditors, 
 49 La. Ann. 1731, 22 So. 923; Fos- 
 ter's Succession, 51 La. Ann. 1670, 26 
 So. 568; Felder i;. Leftwich, 123 La. 
 931, 49 So. 645; Cox v. Smith, 1 Nev. 
 161, 90 Am. Dee. 476; Armijo v. Hen- 
 ry, 14 ISr. M. 181, 89 Pac. 305, 25 
 L.R.A.(N.S.) 275; Cooper v. Indian 
 Territory Bank, 4 Okla. 632, 46 Pac. 
 475 ; Branyan v. Kay, 33 S. C. 283, 11 
 
174: 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 445 
 
 to be within reason. So, the courts have sanctioned lump charges 
 of twenty-iive,^° fifty, ^^ seventy-five, *' one hundred,^' one hundred 
 and fifty," two hundred,^" eight hundred,^ and even one thousand 
 dollars.* 
 
 The reasonableness of the fees may be determined by the 
 trial- court without hearing evidence,^ and the amount so deter- 
 mined to be reasonable will not be interfered with on review* 
 in the absence of manifest error.^ It is well settled that the 
 court may reduce the fee fixed by the mortgage,^ but since it is 
 
 S. E. 970; Equitable Bldg., etc., 
 Assoc. V. Hoffman, 50 S. C. 303, 27 
 S. E. 692; Bird v. Kendall, 62 S. C. 
 178, 40 S. E. 142; Columbian Bldg., 
 etc., Assoc. V. Rice, 68 S. C. 236, 1 
 Ann. Cas. 239, 47 S. E. 63. 
 
 iSEliason v. Sidle, 61 Minn. 285, 
 63 N. W. 730; Hitchcock v. Merrick, 
 15 Wis. 522. 
 
 16 Shaffner v. Healy, 57 111. App. 90. 
 
 17 Murray v. Chamberlain, 67 Minn. 
 12, 69 N. W. 474. 
 
 "Barry v. Guild, 126 111. 439, 18 
 N. E. 759, 2 L.R.A. 334; Baker v. 
 Aalberg, 183 111. 258, 55 N. E. 672; 
 Magloughlin v. Clark, 35 111. App. 
 251; Guaranty Sav., etc., Assoc, v. 
 Ascherman, 108 la. 150, 78 N. W. 
 823 ; Gibson v. Southwestern Land 
 Co., 89 Wis. 49, 61 N. W. 282. 
 
 19 Buckley v. Jones, 58 111. App. 
 357. 
 
 20 Rohrhof v. Schmidt, 218 111. 585, 
 75 N. E. 1062. 
 
 1 Commercial Nat. Bank v. John- 
 son, 16 Wash. 536, 48 Pac. 267. 
 
 2Heffron v. Gage, 149 111. 182, 36 
 N. E. 569. 
 
 3 Carriere v. Minturn, 5 Cal. 435; 
 Edwards v. Grand, 121 Cal. 254, 53 
 Pac. 796; Hellier v. Russell, 136 Cal. 
 143, 68 Pac. 581; Carhart v. Allen, 
 56 Fla. 763, 48 So. 47 ; Ames v. Bige- 
 low, 15 Wash. 532, 46 Pac. 10,46; 
 
 Larscheid v. Kittell, 142 Wis. 172, 
 20 Ann. Cas. 576, 125 N. W. 442. 
 
 4 Fowler v. Equitable Trust Co., 
 141 U. S. 411, 12 S. Ct. 8, 35 U. S. 
 (L. ed.) 794; Ames v. Bigelow, 15 
 Wash. 532, 46 Pac. 1046; Reed v. 
 Catlin, 49 Wis. 686, 6 N. W. 326. 
 
 5 In Hawley v. Howell, 60 la. 79, 14 
 N. W. 199, the mortgage provided 
 that "upon the commencement of 
 foreclosure proceedings, a reasonable 
 attorney fee, not less than fifty dol- 
 lars, shall become due and payable, 
 and shall be by the court taxed." 
 The plaintiflE in his petition for fore- 
 closure claimed an attorney's fee of 
 seventy-five dollars. The defendant 
 did not admit the reasonableness of 
 the claim, but the lower court taxed 
 against him an attorney's fee of sev- 
 enty-five dollars, without any show- 
 ing being made that the ardount was 
 reasonable. It was held that there 
 was error, and that the lower court 
 should have allowed only the mini- 
 mum sum which the parties them- 
 selves fixed in the mortgage. 
 
 6 United States. — Dodge v. Tulleys, 
 144 U. S. 457, 12 S. Ct. 728, 36 U. S. 
 (L. ed.) 501; Burns v. Scoggin, 16 
 Fed. 734. 
 
 Alabama. — Munter v, Linn, 61 Ala. 
 492. 
 
§ 445] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 775 
 
 a matter of contract cannot increase it.' 
 
 In several jurisdictions the fees which may be charged and col- 
 lected, and the supervision thereof, in mortgage foreclosure pro- 
 ceedings, are regulated by statute.' Thus a California statute pro- 
 vides that in all cases of foreclosure of mortgages the attorney's 
 fee shall be fixed by the court in which the foreclosure proceedings 
 are had, any stipulation in said mortgage to the contrary notwith- 
 
 Califomia. — Woodland Bank v. 
 Treadwell, 55 Cal. 379. 
 
 Illinois. — Huber v. Brown, 243 111. 
 274, 90 N. E. 748. 
 
 Inddana. — Kennedy v. Eichardson, 
 70 Ind. 524. 
 
 Oregon. — Balfour v. Davis, 14 Ore. 
 47, 12 Pae. 89. 
 
 Pennsylvania. — Daly v. Maitland, 
 88 Pa. St. 384, 32 Am. Kep. 457, 
 overruling Robinson v. Loomis, 51 Pa. 
 St. 78; Lewis v. Germania Sav. Bank, 
 96 Pa. St. 86; Lindley v. Ross, 137 
 Pa. St. 629, 20 Atl. 944; Warwick 
 Iron Co. V. Morton, 148 Pa. St. 72, 
 
 23 Atl. 1065; Wilson v. Ott, 173 Pa. 
 St. 253, 34 Atl. 23, 51 Am. St. Rep. 
 767; Cunningham v. McCready, 219 
 Pa. St. 594, 69 Atl. 82; Scott v. Carl, 
 
 24 Pa. Super. Ct. 460; Insurance Co. 
 ■0. Shields, 12 Phila. 407, 35 Leg. Int. 
 170; Wain v. Massey, 7 W. N. C. 312; 
 Keed v. Worthington, 9 W. N. C. 192; 
 Weigley v. Charlier, 9 Pa. Dist. Ct. 
 670. 
 
 South Carolina. — Matheson v. Rog- 
 ers, 84 S. C. 458, 19 Ann. Cas. 1066, 
 65 S. E. 1054, 67 S. E. 476. 
 
 Necessity of Outlay. — In Reed v. 
 Catlin, 49 Wis. 686, 6 N. W. 326, the 
 court said: "We are strongly in- 
 clined to the opinion that if the 
 mortgagee appear in the foreclosure 
 action in propria persona, and con- 
 duct it himself, without employing a 
 solicitor, nothing should be allowed 
 
 under a, covenant to pay a specified 
 sum for solicitor's fees." 
 
 Compare Renshaw v. Richards, 30 
 La. Ann. 398, wherein it was held 
 that the clause in a, mortgage fixing 
 the fees of the creditor's attorney at 
 a certain percentage in the event of 
 the nonpayment of the debt at matu- 
 rity made the debtor, on the happen- 
 ing of that event, absolutely liable for 
 that amount; and that such liability 
 could not be affected by the fact that 
 the creditor had not really paid or 
 obligated himself to pay that amount 
 of attorney's fees. 
 
 1 California. — Worth v. Worth, 155 
 Cal. 599, 102 Pac. 663. 
 
 Georgia. — Hamlin v. Rogers, 79 Ga. 
 581, 5 S. E. 125. 
 
 Illinois. — Henke v. Gunzenhauser, 
 195 111. 130, 62 N. E. 896. 
 
 Zoico. — Sawyer v. Perry, 62 la. 238, 
 17 N. W. 497. See also Hawley v. 
 Howell, 60 la. 79, 14 N. W. 199. 
 
 Washington. — Potwin v. Blasher, 9 
 Wash. 460, 37 Pac. 710. 
 
 Wisconsin. — Remington r. Willard, 
 15 Wis. 583; Palmeter I'. Carey, 63 
 Wis. 426, 21 N. W. 793, 23 N. w". 586. 
 
 8 The local laws must be consulted. 
 
 In North Carolina, by reason of 
 statute, a stipulation for fixed at- 
 torney's fees in a trust deed was de- 
 clared invalid. Turner v. Boger, 126 
 N. C. 300, 35 S. E. 592, 49 L.E.A. 
 590. 
 
776 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 446 
 
 standing.* A similar law prevails in Utah," and in Washington." 
 The Indiana and Kansas statutes provide, in effect, that any, and 
 all agreements to pay attorney's fees, depending upon any condi- 
 tion therein set forth and made part of any hill of exchange, 
 acceptance, draft, promissory note, or other written evidence of 
 indebtedness, are illegal and void.'^ 
 
 § 446. Stipulation in Note Fixing Attorney Fee for Collec- 
 tion Thereof. — A stipulation in a note to pay attorney's fees 
 is in the nature of an indemnity contract and, as a general rule, 
 the promisee can recover thereunder only such sums as he has 
 actually and necessarily expended or become liable for on account 
 
 9Cal. Code Civ. Pro., p. 863. See 
 also Alden v. Pryal, 60 Cal. 215 ; Mon- 
 roe V. Fohl, 72 Cal. 568, 14 Pae. 514; 
 Moran v. Gardemeyer, 82 Cal. 96, 23 
 Pac. 6; Grangers' Business Assoc, v. 
 Clark, 84 Cal. 201, 23 Pae. 1081; 
 Hewitt V. Dean, 91 Cal. 5, 27 Pac. 
 423; Avery v. Maude, 112 Cal. 565, 
 44 Pac. 1020; O'Neal v. Hart, 116 Cal. 
 69, 47 Pac. 926; Mason v. Luce, 116 
 Cal. 232, 48 Pac. 72; Bonestell v. 
 Bowie, 128 Cal. 511, 61 Pac. 78 ; Hot- 
 aling V. Montieth, 128 Cal. 556, 61 
 Pae. 95; Haensel v. Pacific States 
 Sav. etc., Co., 135 Cal. 41, 67 Pac. 38 ; 
 Hellier v. Russell, 136 Cal. 143, 68 
 Pae. 581; Thrasher v. Moran, 146 
 Cal. 683, 81 Pac. 32; Corson v. Mc- 
 Donald, 3 Cal. App. 412, 85 Pac. 861. 
 
 10 Utah Comp. Laws ( 1907 ) § 3505. 
 
 11 The Washington statute pro- 
 vides : "In all cases of foreclosure of 
 mortgages and in all other cases in 
 which attorney's fees are allowed, the 
 amount thereof shall be fixed by the 
 court at such sum as the court shall 
 deem reasonable, any stipulations in 
 the note, mortgage, or other instru- 
 ment to the contrary notwithstand- 
 
 ing; but in no case shall said fee be 
 fixed above contract price stated in 
 said note or contract." Ballinger's 
 Codes & St. (1897), § 5166. See also 
 Dennis v. Moses, 18 Wash. 537, 52 
 Pac. 333, 40 L.R.A. 302; Vermont L. 
 & T. Co. V. Greer, 19 Wash. 611, 53 
 Pac. 1103. 
 
 ii Indiana.— Burns Ann. St. (1908) 
 § 9089. See also Barry v. Snowden, 
 106 Fed. 571. 
 
 The Kansas statute provides: 
 "That hereafter it shall be unlawful 
 for any person or persons, company, 
 corporation, or bank, to contract for 
 the payment of attorney's fees in any 
 note, bill of exchange, bond, or mort- 
 gage; and any such contract or stip- 
 ulation for the payment of attorney's 
 fees shall be null and void; and that 
 hereafter no court in this state shall 
 render any judgment, order, or decree 
 by which any attorney's fees shall be 
 allowed or charged to the maker of 
 any promissory note, bill of exchange, 
 bond, mortgage, or other evidence of 
 indebtedness by way of fees, expenses, 
 costs, or otherwise." Gen. Stat. 
 (1905) § 4492. 
 
§ 446] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 777 
 
 of the default of the promisor," and then only when they are 
 reasonable,^* and proven to be so,** and when the conditions prec- 
 edent stipulated in the note are shown to exist ; ** but it has been 
 
 ^3 Indiana. — Goss v. Bowen, 104 
 Ind. 207, 2 N. E. 704; Starnes v. 
 Schofield, 5 Ind. App. 4, 31 N. E. 480; 
 Moore v. Staser, 6 Ind. App. 364, 32 
 N. E. 563, affirming 6 Ind. App. 368, 
 33 N. E. 665; Judson v. Romaine, 8 
 Ind. App. 390, 35 N. E. 812; Farm- 
 ers, etc., Nat. Bank v. Barton, 21 111. 
 App. 403. 
 
 Iowa. — White v. Lucas, 46 la. 319. 
 
 Texas. — Bonnell v. Prince, 11 Tex. 
 Civ. App. 399, 32 S. W. 855 ; Smith v. 
 Board, 21 Tex. Civ. App. 213, 51 S. 
 W. 520; Lay V. Cardwell, 33 S. W. 
 595. 
 
 Utah. — Salisbury v. Stewart, 15 
 Utah 308, 49 Pac. 777, 62 Am. St. 
 Rep. 934. 
 
 l* Alabama. — ^Williams v. Flowers, 
 90 Ala. 136, 7 So. 439, 24 Am. St. 
 Rep. 772; McGhee v. Importers' etc., 
 Nat. Bank, 93 Ala. 192, 9 So. 734; 
 Gates V. Morton Hardware Co., 146 
 Ala. 692 mem., 40 So. 509. 
 
 California. — Hildreth j;. Williams, 
 33 Pae. 1113. 
 
 Florida. — Cooper Grocery Co. v. 
 Citizens' Bank & Trust Co., 62 Fla. 
 142, 56 So. 435. 
 
 Georgia. — Ray v. Pease, 97 Ga. 618, 
 25 S. E. 360; Morgan v. Kiser, 105 
 6a. 104, 31 S. E. 45. 
 
 Idaho. — Rinker v. Lauer, 13 Idaho 
 163, 88 Pac. 1057. 
 
 Indiana. — Strough v. Gear, 48 Ind. 
 100. 
 
 Minnesota. — Campbell v. Worman, 
 58 Minn. 561, 60 N. W. 668. 
 
 Missouri. — Bay v. Trusdell, 92 Mo. 
 App. 377. 
 
 Texas. — Texas Land, etc., Co. v. 
 Robertson, 38 Tex. Civ. App. 521, 85 
 S. W. 1020; Mcllhenny v. Planters', 
 etc., Nat. Bank, 46 S. W. 282. 
 
 Washington. — Cloud v. Rivord, 6 
 Wash. 555, 34 Pac. 136; Main v. John- 
 son, 7 Wash. 321, 35 Pac. 67; War- 
 nock V. Itawis, 38 Wash. 144, 80 Pac. 
 297. 
 
 Costs in Appellate Court. — A stip- 
 ulation in a note for the payment of 
 attorney's fees does not authorize a 
 recovery of fees necessarily incurred 
 in maintaining the judgment in an 
 appellate court. McCormaek v. Falls 
 City Bank, 57 Fed. 107, 9 U. S. App. 
 203, 6 C. C. A. 683. 
 
 15 Orr V. Sparkman, 120 Ala. 9, 23 
 So. 829; Wyant v. PottorflF, 37 Ind. 
 512 ; Shoup v. Snepp, 22 Ind. App. 30, 
 53 N. E. 189; Muscatine First Nat. 
 Bank v. Krance, 50 la. 235; Bowles v. 
 Doble, 11 Ore. 474, 5 Pac. 918; 
 Bradtfeldt v. Cooke, 27 Ore. 194, 40 
 Pac. 1, 50 Am. St. Rep. 701; Cox v. 
 Alexander, 30 Ore. 438, 46 Pac. 794; 
 First Nat. Bank v. Mack, 35 Ore. 122, 
 57 Pac. 326. 
 
 Creditor's Attornei/ Cannot Fix 
 Amount Due. — A note with warrant 
 of attorney attached, authorizing any 
 attorney at law to confess judgment 
 for an amount named, and for a rea- 
 sonable attorney's fee, does not, 
 where the creditor selects his own 
 attorney for that purpose, allow such 
 attorney to fix the amount of at- 
 torney's fee which the debtor shall 
 pay. Askew v. Goddard, 17 111. App. 
 377. 
 
 "In re Jenkins, 192 Fed. 1000; 
 
7Y8 
 
 AMOUNT, ETC. OF COMPEIirSATION. 
 
 [§ 446 
 
 held that the court can determine the reasonableness of attorney's 
 fees without hearing evidence." 
 
 Where the note itself fixes the amount of the collection fee, the 
 sum so stipulated will control, providing it does not appear to be 
 unreasonable." The reasonableness of the fee must, of course, 
 depend on the facts. In many cases it has been held reasonable 
 to stipulate for ten per cent of the amount of the note as attorney's 
 fees." 
 
 In Iowa it is provided by statute that in an action on a 
 written contract providing for attorney's fees, the amount allowed 
 shall be ten per cent on the first two hundred dollars or fractional 
 part thereof, five per cent on the next three hundred dollars, three 
 per cent on the excess of five hundred dollars up to one thousand 
 
 Johnson v. Marsh, 21 W. N. C. (Pa.) 
 570. 
 
 ll'Kobertson v. Holman, 36 Tex. 
 Civ. App. 31, 81 S. W. 326; Duno- 
 vant V. Stafford, 36 Tex. Civ. App. 33, 
 81 S. W. 101; Fowler v. Bell, (Tex.) 
 35 S. W. 822; Burns v. Staaoke, 
 (Tex.) 53 S. W. 354. 
 
 18 Alabama. — Wood v. Winship 
 Mach. Co., 83 Ala. 424, 3 So. 757, 3 
 Am. St. Rep; 754; Stephenson v. Alli- 
 son, 123 Ala. 439, 26 So. 290. 
 
 California. — Alexander v. McDow, 
 108 Cal. 25, 41 Pac. 24. 
 
 Georgia. — Cramer v. Huff, 114 Ga. 
 981, 41 S. E. 57. 
 
 Missouri. — North Atchison Bank v. 
 Gay, 114 Mo. 203, 21 S. W. 479. 
 
 New Mexico. — Exchange Bank v. 
 Tuttle, 5 N. M. 427, 23 Pac. 241, 7 
 L.R.A. 445. 
 
 Texas. — Eagle Lake First Nat. 
 Bank v. Robinson, 104 Tex. 166, 135 
 S. W. 372; Jungbecker v. Huber, 101 
 S. W. 552; Miller v. Laughlin, 147 
 S. W. 711. 
 
 Utah. — McCornick i;. Swem, 36 
 Utah 6, 20 Ann. Cas. 1368, 102 Pac. 
 626. 
 
 Wisconsin. — Stillwater First Nat. 
 Bank v. Larsen, 60 Wis. 206, 19 N. 
 W. 67, 50 Am. Rep. 365. 
 
 19 Alaiama. — Wood v. Winship 
 Mach. Co., 83 Ala. 424, 3 So. 757, 3 
 Am. St. Rep. 754; Williams v. Flow- 
 ers, 90 Ala. 136, 7 So. 439, 24 Am. St. 
 Rep. 772. 
 
 Georgia. — Pattillo v. Alexander, 96 
 Ga. 60, 22 S. E. 646, 29 L.R.A. 616; 
 Morgan v. Kiser, 105 Ga. 104, 31 S. 
 E. 45; Hamilton v. Rogers, 126 Ga. 
 27, 54 S. E. 926; Kelley v. Farmers', 
 etc.. Bank, 6 Ga. App. 691, 65 S. E. 
 706. 
 
 Illinois. — Dorsey v. Wolff, 142 111. 
 589, 32 N. W. 495, 34 Am. St. Rep. 
 99, 18 L.R.A. 428. 
 
 loioa. — Mclntire v. Cagley, 37 la. 
 676. 
 
 Mississippi. — Brahan v. First Nat. 
 Bank, 72 Miss. 266, 16 So. 203. 
 
 Texas. — Simmons v. Terrell, 75 
 Tex. 275, 12 S. W. 854; Morrill v. 
 Hoyt, 83 Tex. 59, 18 S. W. 424, 29 
 Am. St. Rep. 630; Huddleston v. 
 Kempner, 1 Tex. Civ, App. 211, 21 S. 
 W. 946; Behrens v. Dignowitty, 4 
 Tex. Civ. App. 201, 23 S. W. 288; 
 
§ 447] 
 
 AMOUNT, ETC. OF COMPEJiTSATION. 
 
 779 
 
 dollars, and one per cent on all over the latter amount.^" In 
 Indiana and Kansas stipulations for attorney fees are invalid.' 
 
 Under Implied Contract. 
 
 § 447. Reasonable Compensation Allowed. — Implied 
 agreements between attorney and client stand upon the same foot- 
 ing as do like agreements betv^een other parties.^ They never arise 
 with reference to a subject-matter already covered by a valid sub- 
 sisting express contract* 
 
 The rule in the United States is that where a client avails 
 himself of the professional services of an attorney at law, and 
 accepts the benefits thereof, and the attorney's compensation 
 is not fixed by an express contract, the law will imply a 
 promise on the part of the client to pay the attorney * such an 
 
 Carver v. J. S. Mayfield Lumber Co., 
 29 Tex. Civ. App. 434, 68 S. W. 711. 
 
 201a. code (1897) § 3869. See also 
 Bankers' Iowa State Bank v. Jordan, 
 111 la. 324, 82 N. W. 779. 
 
 ^Indiana. — Burns Ann. St. (1908) 
 § 9089. See also Barry v. Snowden, 
 106 Fed. 571; Smiley v. Meir, 47 Ind. 
 559; Toler v. Keiher, 81 Ind. 383; 
 Eouyer v. Miller, 16 Ind. App. 519, 
 44 N. E. 51, 45 N. E. 674. 
 
 Kansas.— Gen. Stats. (1905) § 
 4492 (set out in the following text 
 section ) . 
 
 2 Stow V. Hamlin, 11 How. Pr. (N. 
 Y.) 452. 
 
 s Lane, etc., Co. v. Taylor, 80 Ark. 
 469, 97 S. W. 441, 7 L.R.A.(N.S.) 
 924; Bull v. St. Johns, 39 Ga. 78; 
 Wilmington v. Bryan, 141 N. C. 666, 
 54 S. E. 543. 
 
 * United States. — Blake v. Eliza- 
 beth, 2 N. J. L. J. 328, 3 Fed. Cas. No. 
 1,495. 
 
 Georgia. — Hood v. Ware, 34 Ga. 
 328. 
 
 Illinois. — Cooper v. Hamilton, 52 
 
 111. 119; Bell v. Smith, 28 111. App. 
 181; Siegel v. Hanchett, 33 111. App. 
 634. 
 
 Indiana. — Miles v. De Wolf, 8 Ind. 
 App. 176, 34 N. E. 114; Moore v. Orr, 
 10 Ind. App. 89, 37 N. E. 554. 
 
 Iowa. — Turner v. Myers, 23 la. 
 391; Hudspeth v. Yetzer, 78 la. 11, 
 42 N. W. 529. 
 
 Kentucky. — Pittsburgh, etc., R. Co. 
 V. WooUey, 12 Bush 451; Patterson 
 V. Fleenor, 89 S. W. 705, 28 Ky. L. 
 Rep. 582. 
 
 Louisiana. — Carter v. New Orleans, 
 5 Rob. 238. 
 
 Massachusetts. — Perry v. Lord, 111 
 Mass. 504; Taft v. Shaw, 159 Mass. 
 592, 35 N. E. 88 ; Paul v. Wilbur, 189 
 Mass. 48, 75 N. E. 63. 
 
 Michigan. — Cicotte v. Catholic, etc.. 
 Church, 60 Mich. 552, 27 N. W. 682; 
 Kelley v. Richardson, 69 Mich. 430, 
 37 N. W. 514; Marx v. McMorran, 
 136 Mich. 406, 99 N. W. 396, 11 De- 
 troit Leg. N. 80. 
 
 Minnesota. — Humphreys v. Jacoby, 
 41 Minn. 226, 42 N. W. 1059. 
 
780 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 447 
 
 amount as will be equivalent to the reasonable value of the services 
 so rendered by him.* 
 
 Missouri. — Boyd v. Chicago, etc., 
 E. Co., 84 Mo. 615; Trimble v. Tex- 
 arkana, etc., K. Co., 199 Mo. 44, 97 
 S. W. 164. 
 
 New Jersey. — Scott v. New York 
 Filling Co., 79 N. J. L. 231, 75 Atl. 
 772. 
 
 New York. — Heller v. Kaliseh, 141 
 App. Div. 205, 125 N. Y. S. 1057; 
 Avery v. Jacob, 59 Super. Ct. 585 
 mem., 15 N. Y. S. 564. 
 
 Ohio. — Holmes v. Holland, 11 Ohio 
 Dec. (Reprint) 768, 29 Cine. L. Bui. 
 115. 
 
 Ohlahoma. — Gillette v. Murphy, 7 
 Okla. 91, 54 Pac. 413; Mellon v. Ful- 
 ton, 22 Okla. 636, 98 Pac. 911, 19 
 L.R.A.(N.S.) 960. 
 
 South Carolina. — Ex p. Fort, 36 S. 
 C. 19, 15 S. E. 332. 
 
 Texas. — Fore v. Chandler, 24 Tex. 
 146. 
 
 WasTUngton. — Isham v. Parker, 3 
 Wash. 755, 29 Pac. 835; McKay v. 
 Atkinson, 55 Wash. 591, 104 Pac. 806. 
 
 West Virginia. — Watts v. West Vir- 
 ginia S. K. Co., 48 W. Va. 262, 37 S. 
 E. 700. 
 
 5 United States. — ^Newman v. Keff- 
 er, Brun. Col. Cas. 502, 18 Fed. Cas. 
 No. 10,177 ; Hughes v. Dundee Mortg., 
 etc., Co., 21 Fed. 169; Middleton v. 
 Bankers, etc., Co., 32 Fed. 524; Tuttle 
 V. Claflin, 86 Fed. 964; Central Trust 
 Co. V. IngeraoU, 87 Fed. 427, 59 U. S. 
 App. 242, 31 C. C. A. 41; William 
 Firth Co. v. Millen Cotton Mills, 129 
 Fed. 141 ; Graves v. Sanders, 125 Fed. 
 690, 60 C. C. A. 422, affirming 105 
 Fed. 849; Gilmore v. McBride, 156 
 Fed. 464, 84 C. C. A. 274; Conn v. 
 Eice, 204 Fed. 181. 
 
 Alabama. — Davis v. Walker, 131 
 Ala. 204, 31 So. 554; Irvin v. Stroth- 
 er, 163 Ala. 484, 50 So. 969. 
 
 California. — Roche v. Baldwin, 143 
 Cal. 192, 76 Pac. 956; Cusick v. 
 Boyne, 1 Cal. App. 643, 82 Pac. 985. 
 
 Connecticut. — Eowell ». Ross, 87 
 Conn. 157, 87 Atl. 355. 
 
 Florida. — Carter v. Bennett, 6 Fla. 
 214; Stewart v. Beggs, 56 Fla. 567, 
 47 So. 932. 
 
 Georgia. — Churchill v. Bee, 66 Ga. 
 621; Wells V. Haynes, 101 Ga. 841, 
 28 S. E. 968. 
 
 Idaho. — ^Mullan v. Clark, 4 Idaho 
 186, 38 Pac. 247. 
 
 Illinois. — Kirk v. Wolf Mfg. Co., 
 118 111. 567, 8 N. E. 815; Louisville, 
 etc., R. Co. V. Wallace, 136 111. 87, 26 
 N. E. 493, 11 L.R.A. 787; Nathan v. 
 Brand, 167 111. 607, 47 N. E. 771, 
 affirming 67 111. App. 540; McMan- 
 nomy v. Chicago, etc., E. Co., 167 111. 
 497, 47 N. E. 712, reversing 63 111. 
 App. 259; Robinson v. Sharp, 201 111. 
 86, 66 N. E. 299, affirming 103 111. 
 App. 239 ; Peoples, etc., Co. v. Darrow, 
 70 111. App. 22, affirmed 172 111. 62, 
 49 N. E. 1005 ; Bingham v. Spruill, 97 
 111. App. 374. 
 
 Indiana. — U. S. Mortgage Co. v. 
 Henderson, 111 Ind. 24, 12 N. E. 88; 
 French v. Cunningham, 149 Ind. 632, 
 49 N. E. 797. 
 
 Iowa. — Collins v. Jennings, 42 la. 
 447; Dorr v. Dudley, 135 la. 20, 112 
 N. W. 203; Graham v. Dillon, 144 la. 
 82, 121 N. W. 47; Gates v. McClena- 
 han, 103 N. W. 969. 
 
 Kentucky. — Pittsburgh, etc., R. Co. 
 V. Woolley, 12 Bush 451; Downing v. 
 Major, 2 Dana 228; Fox u Willis, 
 
§ 447] 
 
 AMOUNT, ETC, OF COMPENSATION. 
 
 781 
 
 114 Ky. 940, 72 S. W. 330, 73 S. W. 
 743; Hays v. Johnson, 99 S. W. 332; 
 Fryer v. Dicken, 47 S. W. 341, 20 Ky. 
 L. Rep. 696; Dills v. Auxier, 85 S. W. 
 743, 27 Ky. L. Rep. 531; Cochran v. 
 Lee, 87 S. W. 769, 27 Ky. L. Rep. 
 1038. 
 
 Louisiana. — Billington v. Poit- 
 event, etc.. Lumber Co., 52 La. Ann. 
 1397, 27 So. 725; Dinkelspiel v. Pons, 
 119 La. 236, 43 So. 1018. 
 
 Maine. — Clay v. Moulton, 70 Me. 
 315. 
 
 Maryland. — Calvert v. Coxe, 1 Gill 
 123. 
 
 Massachusetts. — Aldrich v. Brown, 
 103 Mass. 527; Taft v. Shaw, 159 
 Mass. 592, 35 N. E. 88; Philbrook v. 
 Moxey, 191 Mass. 33, 77 N. E. 520; 
 Blair v. Columbian Fireproofing Co., 
 191 Mass. 333, 77 N. E. 762. 
 
 MioMgam. — Brackett v. Sears, 15 
 Mich. 244; Eggleston v. Boardman, 37 
 Mich. 14; Chamberlain v. Rodgers, 79 
 Mich. 219, 44 N". W. 598. 
 
 Minnesota. — Selover v. Bryant, 54 
 Minn. 434, 56 N. W. 58, 21 L.R.A. 
 418, 434; Dwyer v. Hurley, 109 Minn. 
 415, 124 N. W. 4. 
 
 Mississippi. — Boylan v. Holt, 45 
 Miss. 277; Clifton v. Clark, 84 Miss. 
 795, 37 So. 746. 
 
 Missouri. — Bogliolo v. Scott, 5 Mo. 
 341; Webb v. Browning, 14 Mo. 354; 
 Rose V. Spies, 44 Mo. 20; Wright v. 
 Baldwin, 51 Mo. 269; Eoff v. Irvine, 
 
 108 Mo. 378, 18 S. W. 907, 32 Am. St. 
 Eep. 609; Trimble v. Texarkana, etc., 
 R. Co., 199 Mo. 44, 97 S. W. 164; 
 Rumsey v. Frank, 84 Mo. App. 508; 
 Kingsbury v. Joseph, 94 Mo. App. 
 298, 68 S. W. 93; Dempsey u.. Wells, 
 
 109 Mo. App. 470, 84 S. W. 1015; 
 Bissell V. Zorn, 122 Mo. App. 688, 99 
 S. W. 458. 
 
 Wew Hampshire. — Smith v. Davis, 
 45 N. H. 566. 
 
 New Jersey. — Strong v. Mundy, 52 
 N. J. Eq. 833, 31 Atl. 611, reversing 
 52 N. J. Eq. 744, 30 Atl. 322. 
 
 New York. — Starin v. New York, 
 
 106 N. Y. 82, 12 N. E. 643; Randall 
 V. Packard, 142 N. Y. 47, 36 N. E. 
 823; Tinney v. Pierrepont, 18 App. 
 Div. 627, 45 N. Y. S. 977; Dailey v. 
 Devlin, 21 App. Div. 62, 47 N. Y. S. 
 296; Crosby v. Kropf, 33 App. Div. 
 446, 54 N. Y. S. 76; Hempstead v. 
 New York, 86 App. Div. 300, 83 N. Y. 
 S. 806; Sanford v. Bronson, 109 App. 
 Div. 835, 96 N. Y. S. 859; Ross v. 
 Bayer, etc., Co., 123 App. Div. 404, 
 
 107 N. Y. S. 1063; Caccia v. Isecke, 
 123 App. Div. 779, 108 N. Y. S. 542; 
 Steele v. Hammond, 136 App. Div. 
 667, 121 N. Y. S. 589; In re Raby, 25 
 Misc. 240, 55 N. Y. S. 87 ; Schlesinger 
 V. Dunne, 36 Misc. 529, 10 N. Y. Ann. 
 Cas. 350, 73 N. Y. S. 1014; Kellogg v. 
 Reese, 48 Hun 621 mem., 14 Civ. 
 Pro. 283, 1 N. Y. S. 291; Van Every 
 V. Adams, 42 Super. Ct. 126; Crotty 
 V. McKenzie, 42 Super. Ct. 192; 
 Clark V. Brooklyn El. R. Co., 42 Hun 
 655 mem., 5 N. Y. St. Rep. 52; Eas- 
 ton V. Smith, 1 E. D. Smith 318 ; Garr 
 V. Mairet, 1 Hilt. 498; Cregier v. 
 Cheesbrough, 25 How. Pr. 200; Stev- 
 ens l: Adams, 23 Wend. 57, 26 Wend. 
 451; Stoutenburgh v. Fleer, 87 N. Y. 
 S. 504; Scharps v. Hess, 120 N. Y. S. 
 56. 
 
 North Carolina. — Simmons v. Dav- 
 enport, 140 N. C. 407, 53 S. 
 E. 225. 
 
 Ohio. — Christy v. Douglas, Wright 
 486. 
 
 Oklahoma. — Mellon v. Fulton, 22 
 Okla. 636, 98 Pac. 911, 19 L.R.A. 
 (N.S.) 960. 
 
782 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 447 
 
 A similar rule prevails in some of the Canadian provinces ; ° in 
 England, however, there can be no such recovery.'' 
 
 But the law does not, in any case, imply a promise by a party 
 against his expressed wishes to the contrary, unless he is under a 
 paramount legal obligation to that effect.' So, when an attorney 
 is employed by one who has full knowledge of his rate of charges, 
 without stipulating as to price, it may, perhaps, be fairly inferred 
 that he expected to pay at such rates. But when the client is in- 
 formed, during the pendency of a suit, of the prices which his 
 attorney is charging for his services, his mere neglect to express 
 
 Pennsylvania. — Gray v. Bracken- 
 ridge, 2 P. & W. 75; Foster v. Jack, 4 
 Watts 334; Newman v. Keflfer, 33 Pa. 
 St. 442 note; 18 Fed. Cas. No. 10,177; 
 Lichty V. Hugus, 55 Pa. St. 434; Mc- 
 Kelvy's Appeal, 108 Pa. St. 615; Tag- 
 gart V. Hower, 17 Atl. 13. 
 
 Rhode Island. — Tiffany v. Morgan, 
 73 Atl. 465. 
 
 South Carolina. — Boyd v. Lee, 36 S. 
 C. 19, 15 S. E. 332 ; Haines v. Wilson, 
 85 S. C. 338, 67 S. E. 311. 
 
 South Dakota. — Cranmer v. Build- 
 ing & Loan Assoc, 6 S. D. 341, 61 N. 
 W. 35. 
 
 Tennessee. — Planters Bank v. Horn- 
 berger, 4 Coldw. 531, 567; Yerger v. 
 Aiken, 7 Baxt. 539; Newman v. Dav- 
 enport, 9 Baxt. 544; Moses v. Ocoee 
 Bank, 1 Lea 401 ; Hume v. Commer- 
 cial Bank, 13 Lea 496; Grant v. Look- 
 out Mountain Co., 93 Tenn. 691, 28 
 S. W. 90; Rogers v. O'Mary, 95 Tenn. 
 514, 32 S. W. 462; Bristol-Goodson 
 Electric Light, etc., Co. v. Bristol Gas, 
 etc., Co., 99 Tenn. 371, 42 S. W. 19 ; 
 Bowling V. Scales, 1 Tenn. Ch. 618; 
 Butler V. King, 48 S. W. 697; 
 Eakin v. Peeples Hotel Co., 54 S. W. 
 87; Vinson v. Cantrell, 56 S. W. 
 1034; Wright v. Knoxville, 59 S. W. 
 677. 
 
 Texas. — Fore v. Chandler, 24 Tex. 
 
 146; Ector v. Wiggins, 30 Tex. 55; 
 Britt V. Burghart, 16 Tex. Civ. App. 
 78, 41 S. W.-389; Tindol v. Beasley, 
 40 S. W. 155; Herndon v. Lammers, 
 55 S. W. 414; Tennant v. Fawcett, 55 
 S. W. 611, reversed on other grounds 
 94 Tex. Ill, 58 S. W. 824; Morris v. 
 Kesterson, 88 S. W. 277. 
 
 Vermont. — ^Vilas v. Downer, 21 Vt. 
 419. 
 
 Virginia. — Yates v. Robertson, 80 
 Va. 475. 
 
 Washington. — Sehultheis v. Nash, 
 27 Wash. 250, 67 Pac. 707; McMilan 
 V. Northport- Smelting, etc., Co., 49 
 Wash. 76, 94 Pac. 761; Atwood v. 
 Sicade, 131 Pac. 850. 
 
 West Virginia. — Watts v. West Vir- 
 ginia, S. R. Co., 48 W. Va. 262, 37 S. 
 E. 700; Dorr v. Camden, 55 W. Va. 
 226, 46 S. E. 1014, 65 L.R.A. 348; 
 Keenan v. Scott, 64 W. Va. 137, 61 S. 
 E. 806 ; Cecil v. Clark, 69 W. Va. 641, 
 72 S. E. 737. 
 
 Wisconsin. — ^Vilas v. Bundy, 106 
 Wis. 168, 81 N. W. 812. 
 
 6 See supra, § 403. 
 
 ' See supra, § 401. 
 
 8 Hughes V. Dundee Mortg., etc., 
 Co., 21 Fed. 174; Fraaer v. Haggerty, 
 86 Mich. 521, 49 N. W. 616. See 
 also McGraw v. Canton, 74 Md. 554, 
 22 Atl. 132. 
 
448] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 783 
 
 dissatisfaction therewith, or to dismiss the attorney, cannot be 
 held to be an acquiescence in those prices, or as binding him to pay 
 at such rate for future services in the same suit.^ 
 
 In some instances the amount of an attorney's compensation is 
 regulated by statute.*" 
 
 § 448. What Are Reasonable Fees. — It is, of course, well 
 known to the practitioner that no hard and fast rule can be stated 
 which will serve even as a guide in determining what is or what 
 is not a reasonable fee. That must be determined from the facts 
 in each case.** An amount which would be reasonable in one case 
 
 9 Vilas V. Downer, 21 Vt. 419. 
 
 10 Where the legislature, by a spe- 
 cial act, adjusts the claims of at- 
 torneys employed by the attorney 
 general in suits in relation to real 
 estate of the state, it withdraws from 
 the courts any jurisdiction on the 
 question of allowance of fees. Julian 
 V. State, 122 Ind. 68, 23 N. E. 690. 
 
 Under the British Columbia Work- 
 men's Compensation Act, § 10, an 
 award limiting an attorney's right in 
 hia client's recovery to an allowance 
 to be made by the arbitrator on appli- 
 cation, precludes attorneys who sue 
 in British Columbia under that act 
 from claiming any other interest in a, 
 recovery. Plummer v. Great North- 
 ern R. Co., 60 Wash. 214, 110 Pac. 
 989, 31 L.E.A.(N.S.) 1215. 
 
 Under Ontario Statute. — In an ac- 
 tion for services rendered as at- 
 torneys in the province of Ontario, 
 and claiming compensation in accord- 
 ance with the rates established by the 
 statutes of Ontario, where defendant 
 contended that there was a special 
 agreement as to the charges to be 
 made, an instruction that, if the jury 
 found no such agreement was made, 
 the plaintiff's compensation would be 
 
 regulated by the statute of Ontario, 
 was properly given. Dawson v. Pet- 
 erson, 110 Mich. 431, 68 N. W. 246, 3 
 Detroit Leg. N. 441. 
 
 11 United States.— Ex p. Plitt, 2 
 Wall. Jr. (C. C.) 453, 19 Fed. Cas. 
 No. 11,228 ; In re Bignall, 9 Fed. 385. 
 
 Ilvnms. — Bingham v. Spruill, 97 
 111. App. 374. 
 
 Kentucky. — Downing v. Major, 2 
 Dana 228 ; Fox v. Willis, 114 Ky. 940, 
 
 72 S. W. 330, 24 Ky. L. Rep. 1773, 
 
 73 S. W. 743, 24 Ky. L. Rep. 2173. 
 Louisiana. — Succession of Auld, 45 
 
 La. Ann. 248, 11 So. 948. 
 
 Maryland. — Gordon v. Miller, 14 
 Md. 204. 
 
 Michigan. — Brackett v. Sears, 15 
 Mich. 244; Warren v. Sheehan, 156 
 Mich. 432, 120 N. W. 810. 16 Detroit 
 Leg. N. 157. 
 
 Nebraska. — Oressman v. Whitall, 
 16 Neb. 592, 21 N. W. 458. 
 
 New York. — Farmers' L. & T. Co. v. 
 Mann, 4 Eobt. 356 ; Randall v. Kings- 
 land, 53 How. Pr. 512. 
 
 Rhode Island. — Burns v. Allen, 15 
 R. I. 32, 23 Atl. 35, 2 Am. St. Rep. 
 844. 
 
 South Carolina. — Duncan v. Breith- 
 aupt, 1 McCord L. 149. 
 
784 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 448 
 
 might be grossly excessive in another. Thus, merely by way of 
 illustration, fees have been sustained as reasonable to the extent 
 of twenty,'^ twenty-five," fifty,^* sixty,*' one hundred and fifty,*' 
 two hundred," two hundred and fifty," three hundred," four hun- 
 dred,^" four hundred and fifty,* four hundred and seventy-five,^ 
 five hundred,^ six hundred,* seven hundred,* eight hundred,* one 
 thousand,'' thirteen hundred,* two thousand,® twenty-eight hun- 
 dred,*" three thousand,** five thousand,** six thousand,*' ten 
 
 12 McLaren v. Lochrane, 51 Ga. 237. 
 
 13 Farley v. Geisheker, 78 la. 453, 
 43 N. W. 279, 6 L.E.A. 533; Hitch- 
 cock V. Merrick, 15 Wis. 522. 
 
 1* Johnson v. Ravitch, 113 App. 
 Div. 810, 921, 99 N. Y. S. 1059, 100 
 N. Y. S. 1123 ; Aultman & Taylor Co. 
 V. Gilbert, 28 S. C. 303, 5 S. E. 806. 
 
 16 Reisterer v. Carpenter, 124 Ind. 
 30, 24 N. E. 371. 
 
 16 Lartigue v. White, 25 La. Ann. 
 325'; Kult V. Nelson, 24 Misc. 20, 53 
 N. Y. S. 95, modified 25 Misc. 238, 55 
 N. Y. S. 56; Mumma's Appeal, 127 
 Pa. St. 474, 18 Atl. 6, 24 W. N. C. 
 297. 
 
 17 Uzee V. Biron, 6 La. Ann. 565 ; 
 Billingtou v. Poitevent, etc., Lumber 
 Co., 52 La. Ann. 1397, 27 So. 725; 
 Koenig v. Harned, (N. J.) 13 Atl. 
 236; Farmers' L. & T. Co. v. Mann, 4 
 Robt. (N. Y.) 356; Taylor v. Badoux, 
 (Tenn.) 58 S. W. 919. 
 
 isCallender v. Turpin, (Tenn.) 61 
 S. W. 1057. 
 
 19 In re Pieris, 82 App. Div. 466, 
 81 N. Y. S. 927, affirmed 176 N. Y. 
 566, 68 N. E. 1123. 
 
 20 Patterson v. Fleenor, 89 S. W. 
 705, 28 Ky. L. Rep. 582; In re Leech, 
 45 La. Ann. 194, 12 So. 126. 
 
 1 Fryer v. Dicken, 47 S. W. 341, 20 
 Ky. L. Rep. 696. 
 
 2 Wilson V. Minneapolis, etc., R. Co., 
 31 Minn. 481, 18 N. W. 291. 
 
 S Copley V. Harrison, 3 Rob. (La.) 
 
 83; Succession of Sterry, 38 La. Ann. 
 854; Vinson v. Cantrell, (Tenn.) 56 
 S. W. 1034; Halaska v. Cotzhausen, 
 52 Wis. 624, 9 N. W. 401. 
 
 * Garrigus v. Gilbert, 4 Ky. L. Rep. 
 1001 (abstract). 
 
 5 Succession of Roth, 33 La. Ann. 
 540; In re Culp, 26 W. N. C. (Pa.) 
 78. 
 
 6 Eakin v. Peeples Hotel Co., 
 (Tenn.) 54 S. W. 87. 
 
 T Davis V. Webber, 66 Ark. 190, 49 
 S. W. 822, 74 Am. St. Rep. 81, 43 
 L.R.A. 196; Wright v. Knoxville Liv- 
 ery, etc., Co., (Tenn.) 59 S. Vf. 677; 
 McMillan v. Northport Smelting, etc., 
 Co., 49 Wash. 76, 94 Pac. 761. 
 
 8 Young V. Lanznar, 133 Mo. App. 
 130, 112 S. W. 17. 
 
 8 Hempstead v. New York, 86 App. 
 Div. 300, 83 N. Y. S. 806; Butler v. 
 King, (Tenn.) 48 S. W. 697. 
 
 1" National Home Bldg., etc., Assoc. 
 V. Fifer, 71 111. App. 295. 
 
 UStucky V. Smith, 148 Ky. 401, 
 146 S. W. 1128; Morehead v. Ander- 
 son, 100 S. W. 340, 30 Ky. L. Rep. 
 3137; Gribble v. Ford, (Tenn.) 52 S. 
 W. 1007. 
 
 12 In re Treadwell, 23 Fed. 442, 9 
 Sawy. 29; St. Louis, etc., R. Co. v. 
 Clark, 51 Fed. 483, 10 U. S. App. 66, 
 2 C. C. A. 331 ; Sanders v. Seelye, 128 
 111. 631, 21 N. E. 601. 
 
 IS Ex p. Plitt, 2 Wall. Jr. (C. C.) 
 453, 19 Fed. Cas. No. 11,228; Cellu- 
 
448] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 785 
 
 thousand,** twelve thousand,*' thirteen thousand,** twenty-one 
 thousand,*'' twenty-seven thousand dollars,** and upwards.*^ 
 
 On the other hand, charges have been denounced as excessive 
 where, from the facts presented, they appeared to be unreason- 
 able ; ^'' thus as to charges of one hundred,* two hundred and 
 twenty-five,^ two hundred and fifty,^ three hundred,* five hundred,® 
 eight hundred,* nine hundred and seventy-five,' and twenty-five 
 hundred dollars.* 
 
 Where there are several suits all of the same character, the 
 determination of one of which will determine all the others, coun- 
 sel cannot recover the same for each suit as if each had been liti- 
 gated separately, but must be limited to a reasonable compensation 
 for the case tried, and to a nominal one for the others. So, where 
 there are several arguments of a case on appeal, which are mere 
 restatements of the same proposition, they should not be treated 
 as services rendered in separate cases, in determining the amount 
 of the attorney's compensation.' JSTor can a just estimate of the 
 
 loid Mfg. Co. V. Chandler, 27 Fed. 9 ; 
 Lamar Ins. Co. v. Pennell, 19 111. App. 
 212. 
 
 liDelahunty v. Canfield, 118 App. 
 Div. 883, 103 N. Y. S. 939; Thompson 
 V. Knickerbocker lee Co., 6 N. Y. S. 7, 
 affirmed 127 N. Y. 671, 28 N. E. 255. 
 
 15 Hays V. Johnson, 99 S. W. 332, 
 30 Ky. L. Rep. 614. 
 
 ISTuttle V. Clafiin, 86 Fed. 964; 
 Louisville Gas Co. v. Hargis, (Ky.) 
 33 S. W. 946. 
 
 1' People V. Bond St. Sav. Bank, 10 
 Abb. N. Cas. (N. Y.) 15. 
 
 18 Atlantic Sav. Bank v. Hetterick, 
 5 Thomp. & C. (N. Y.) 239. 
 
 19 Frink v. McComb, 60 Fed. 486. 
 
 20 New York. — Frost v. Frost, 1 
 Barb. Ch. 492; Kellogg v. Potter, 11 
 Wend. 170; Jordans V. Van Hoesen, 
 18 Wend. 648; Starin v. Nevr York, 
 106 N. Y. 82, 12 N. E. 643; Aekerman 
 V. Wagener, 55 Hun 608 mem., 8 N. 
 Y. S. 457; In re Eaby, 25 Misc. 240, 
 55 N. Y. S. 87. 
 
 Attys. at L. Vol. II. — 50. 
 
 Texas. — Ker v. Paschal, 1 Tex. Un- 
 rep. Cas. 692. 
 
 Wisconsin. — Yates v. Shepardson, 
 27 Wis. 238; Rogers v. Priest, 74 
 Wis. 538, 43 N. W. 510. 
 
 1 Combs V. Combs, 82 S. W. 298, 26 
 Ky. L. Rep. 617. 
 
 2 Frost V. Reinach, 40 Misc. 412, 81 
 N. Y. S. 246. 
 
 3 Thomasson v. Latourette, 63 App. 
 Div. 408, 71 N. Y. S. 559. 
 
 4 Gordon v. Miller, 14 Md! 214. 
 SDorsey v. Corn, 2 IlL App. 533; 
 
 Scharps v. Hess, 120 N. Y. S. 56. 
 
 6 In re Ludeke, 22 Misc. 676, 50 
 N. Y. S. 962. 
 
 7 In re Raby, 25 Misc. 240, 55 N. Y. 
 S. 87. 
 
 8 In re Rude, 101 Fed. 805. 
 
 9 Brackett v. Sears, 15 Mich. 244. 
 See also Greeff v. Miller, 87 Fed. 33; 
 In re Kellogg, 96 App. Div. 608, 88 
 2Sr. Y. S. 1033, affirmed 180 N. Y. 534, 
 72 N. B. 1144. 
 
786 
 
 AMOUNT, ETC. OF COMPENSATIOH. 
 
 [§ 449 
 
 value of an attorney's services, while engaged in the settlement 
 of one particular account, be obtained by splitting up the claim 
 into several items, even though he had numerous consultations with 
 the client in regard to the matter.'* 
 
 § 449. Matters Considered in Determining Reasonable 
 Value of Services. — The elements which may properly be con- 
 sidered in determining the reasonable value of the services of an 
 attorney at law are many and varied, and, to a large extent, de- 
 pendent on the facts presented by each case, and the environment 
 of the parties.'* It may be said generally that it is customary to 
 consider: (1) the ability, standing, skill, and experience of the 
 attorney:'* (2) his reputation as a specialist in the particular 
 
 10 Randall v. Kingsland, 53 How. 
 Pr. (N. Y.) 512. 
 
 Where an attorney perforins dis- 
 tinct services for a party without any 
 general employment, there is some 
 reason for saying that for each of 
 these detached services he should 
 charge a separate price, and, in case 
 of dispute, prove its separate va.hie; 
 but any such practice in regard to a, 
 general employment would be unrea- 
 sonable and impracticable. Kelley v. 
 Richardson, 69 Mich. 430, 37 N. W. 
 514. 
 
 11 Steele v. Hammond, 136 App. 
 Div. 667, 121 N. Y. S. 589. 
 
 12 Colorado. — Willard v. Williams, 
 10 Colo. App. 140, 50 Pac. 207. 
 
 Iowa. — Clark v. Ellsworth, 104 la. 
 442, 73 N. W. 1023; Graham v. Du- 
 buque Specialty Mach. Works, 138 
 la. 456, 114 N. W. 619, 15 L.R.A. 
 (N.S.) 729. 
 
 Kentucky. — Garrigus v. Gilbert, 4 
 Ky. L. Rep. 1001 (abstract). 
 
 Louisiana. — Fenner v. McCan, 49 
 La. Ann. 600, 21 So. 768. 
 
 Massachusetts. — Blair v. Columbian 
 Fireproofing Co., 191 Mass. 333, 77 
 N. E. 762. 
 
 Michigan. — Eggleston v. Board- 
 man, 37 Mich. 14; Lungerhausen v. 
 Crittenden, 103 Mich. 173, 61 N. W. 
 270. 
 
 New York. — People v. Delaware 
 County, 45 N. Y. 202; Randall v. 
 Packard, 142 N. Y. 47, 36 N. E. 823; 
 Steele v. Hammond, 136 App. Div. 
 667, 121 N. Y. S. 589; Schlesinger v. 
 Dunne, 36 Misc. 529, 10 N. Y. Ann. 
 Cas. 350, 73 N. Y. S. 1014. 
 
 Ohio. — Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249. 
 
 Oregon. — Hamilton v. Holmes, 48 
 Ore. 453, 87 Pac. 154. 
 
 Pennsylvania. — In re McLean, 5 
 Kulp 170. 
 
 Rhode Island. — Gorman v. Bani- 
 gan, 22 R. I. 22, 46 Atl. 38. 
 
 Tennessee. — Butler v. King, 48 S. 
 W. 697. 
 
 Verm,ont. — Vilas v. Downer, 21 Vt. 
 419. 
 
 West Virginia. — Dorr v. Camden, 
 55 W. Va. 226, 46 S. E. 1014, 65 
 L.R.A. 348. 
 
 "In estimating the value of profes- 
 sional services, there is a personal 
 element which neither the applicant. 
 
§ 449] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 7,87 
 
 line of professional business in which he was retained: " (3) the 
 necessity" and demand" for his services: (4) the nature and 
 character of the controversy, the questions involved therein/* 
 
 the court, nor his brother lawyers 
 wlio may be called on as witnesses 
 can or ought to ignore. The fame 
 services rendered by a young lawyer 
 witli the ink on his license scarcely 
 dry, and by a veteran of forty years' 
 experience, who may have occupied 
 liigh judicial positions, will, prop- 
 erly enough, be measured by each by 
 a very different standard, and will 
 entitle each to very different com- 
 pensation." Bowling V. Scales, 1 
 Tenn. Ch. 620. Eakin v. Poeples 
 Hotel Co., (Tenn.) 54 S. W. 87. 
 
 13 Schlesinger v. Dunne, 36 Misc. 
 529, 10 N. Y. Ann. Cas. 350, 73 N. 
 y. S. 1014. 
 
 l*Artz V. Robertson, 50 111. App. 
 27. 
 
 16 Blair v. Columbian Fireproofing 
 Co., 191 Mass. 333, 77 N. E. 762. 
 
 16 Colorado. — ^Willard v. Williams, 
 10 Colo. App. 140, 50 Pac. 207. 
 
 Oonneoticut. — Phelps v. Hunt, 40 
 Conn. 97. 
 
 Illinois. — Campbell v. Goddard, 17 
 111. App. 385. 
 
 Kansas. — Ottawa University v. 
 Parkinson, 14 Kan. 159. 
 
 Kentucky. — Louisville Gas Co. v. 
 Hargis, 33 S. W. 946; Garrigus v. 
 Gilbert, 4 Ky. L. Rep. 1001 (ab- 
 stract). 
 
 Louisiana.- — Fenner v. McCan, 49 
 La. Ann. 600, 21 So. 768. 
 
 Massachusetts. — Caverly v. Mc- 
 Owen, 123 Mass. 574; Blair v. Co- 
 lumbian Fireproofing Co., 191 Mass. 
 333, 77 N. E. 762. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14; Chamberlain v. Rodgers, 
 79 Mich. 219, 44 N. W. 598. 
 
 Minnesota. — Selover v. Bryant, 54 
 Minn. 434, 56 N. W. 58, 40 Am. St. 
 Rep. 349, 21 L.R.A. 418. 
 
 Mississippi. — Holly Springs v. 
 Manning, 55 Miss. 380. 
 
 'Nevada. — Quint v. Ophir Silver 
 Min. Co., 4 Nev. 304. 
 
 "New York. — Walker v. American 
 Nat. Bank, 49 N. Y. 659; Hailand 
 V. Lilienthal, 53 N. Y. 438; Schles- 
 inger V. Dunne, 36 Misc. 529, 10 N. 
 Y. Ann. Cas. 350, 73 N. Y. S. 1014; 
 People V. Bond St. Sav. Bank, 10 
 Abb. N. Cas. 15. 
 
 Ohio. — Kittredge v. Armstrong, 13 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249. 
 
 Rhode Island. — Gorman v. Banigan, 
 22 R. I. 22, 46 Atl. 38. 
 
 Tennessee. — Butler v. King, 48 S. 
 W. 697. 
 
 Texas. — International, etc., R. Co. 
 V. Clark, 81 Tex. 51, 16 S. W. 631. 
 
 Virginia. — Parsons v. Maury, 101 
 Va. 516, 44 S. E. 758. 
 
 In Forsyth v. Doolittle, 120 U. S. 
 73, 7 S. Ct. 408, 30 U. S. (L. ed.) 
 586, Mr. Justice Field said: "The 
 services for which compensation is 
 sought were not only those required 
 of attorneys and counselors at law, 
 but were also those of negotiators, 
 seeking to accomplish the result de- 
 sired, by consultation with proposed! 
 purchasers, and presentation to them 
 of the advantages to be derived from 
 the property, present and prospec- 
 tive. Varied as were the legal ^erw- 
 ices of the plaintiffs, it is plain 
 from the testimony that those ren- 
 dered by negotiation and consulta- 
 tion, and presentation of the uses to 
 
788 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 449 
 
 and the importance of the litigation: ^'' (5) the responsibility as- 
 sumed:^' (6) the time*® and labor expended,*" and the benefits 
 
 which the property could be applied, 
 were far more eflfective and impor- 
 tant. This fact necessarily had a 
 controlling weight in estimating the 
 value of the services. It is difficult 
 to apply to such services any fixed 
 standard by which they can be meas- 
 ured, and their value determined, as 
 can be done with reference to serv- 
 ices purely professional. There is a 
 tact and skill and a happy manner 
 with some persons, which render 
 them successful as negotiators, while 
 others, of equal learning, attainments, 
 and intellectual ability, fail for the 
 want of those qualities. The com- 
 pensation to be made in such cases 
 is, by the ordinary judgment of busi- 
 ness men, measured by the results 
 obtained. It is not limited by the 
 time occupied or the labor bestowed." 
 Quoted in Graves v. Sanders, 125 
 Fed. 690, 60 C. C. A. 422, affirming 
 105 Fed. 849. 
 
 IT Iowa. — Graham v. Dubuque Spe- 
 cialty Mach. Worlcs, 138 la. 456, 114 
 N. W. 619, 15 L.R.A.(N.S.) 729. 
 
 Louisiana. — Fenner v. McCan, 49 
 La. Ann. 600, 21 So. 768. 
 , Massachusetts. — Blair v. Colum- 
 bian Fireproofing Co., 191 Mass. 333, 
 77 N. E. 762. 
 
 New York. — Randall v. Packard, 
 142 N. Y. 47, 36 N. E. 823; Tinney 
 1'. Pierrepont, 18 App. Div. 627, 45 
 N. Y. S. 977; Steele v. Hammond, 
 336 App. Div. 667, 121 N. Y. S. 589; 
 Schlesinger v. Dunne, 36 Misc. 529, 
 10 N. Y. Ann. Cas. 350, 73 N. Y. S. 
 1014. 
 
 Pennsylvania. — Heblich v. Slater, 
 217 Pa. St. 404, 66 Atl. 655. 
 
 Where an attorney is called into 
 
 important unfinished litigation, to 
 succeed distinguished counsel who 
 have failed to satisfy the client, it 
 cannot be said the matters were 
 trivial, and not worthy of compensa- 
 tion. Niemann v. CoUyer, 71 Hun 
 612 mem., 24 N. Y. S. 516. 
 
 18 Fenner v. McCan, 49 La. Ann. 
 600, 21 So. 768; Butler v. King, 
 (Tenn.) 48 S. W. 697. 
 
 '^9 Iowa. — Farley v. Geisheker, 78 
 la. 453, 43 N. W. 279, 6 L.R.A. 533; 
 Graham v. Dubuque Specialty Mach. 
 Works, 138 la. 456, 114 N. W. 619, 
 15 L.R.A.(N.S.) 729. 
 
 Kansas. — Cooper v. Harvey, 77 
 Kan. 854, 94 Pac. 213. 
 
 Louisiana. — Macarty's Succession, 
 3 La. Ann. 518; Lee's Succession, 4 
 La. Ann. 578; Breaux v. Francke. 30 
 La. Ann. 336. 
 
 Michigan. — Crowell v. Truax, 94 
 Mich. 585, 54 N. W. 384. 
 
 Missouri. — Trimble v. Kansas City, 
 etc., E. Co., 201 Mo. 372, 100 S. W. 
 V. 
 
 Nevada. — Quint v. Ophir Silver 
 Min. Co., 4 Nev. 304. 
 
 New Jersey. — Koeoig v. Harned, 13 
 Atl. 236. 
 
 New York. — Schlesinger v. Dunne, 
 36 Misc. 529, 10 N. Y. Ann. Cas. 
 350, 73 N. Y. S. 1014. 
 
 Pennsylvania. — ^In re Becher, 19 
 Phila. 29, 45 Leg. Int. 94. 
 
 Texas. — International & G. X. R. 
 Co. V. Clark, 81 Tex. 48, 16 S. W. 
 631. 
 
 80 Kentucky. — Hays v. Johnson. 99 
 S. W. 332. 
 
 Louisiana. — Fenner v. McCan, 49 
 La. Ann. 600, 21 So. 768. 
 
 Michigan. — Eggleston v. Boardman, 
 
§ 449] AMOUNT, ETC. OF COMPENSATION. 789 
 
 derived therefrom: * (7) the amount involved: * (8) the result: ' 
 
 37 Mich. 17; Kelley v. Richardson, 
 69 Mich. 430, 37 N. W. 514; Cham- 
 berlain V. Rodgers, 79 Mich. 219, 44 
 N. W. 598. 
 
 Hew York. — People v. Delaware 
 County, 45 N. Y. 202; Randall v. 
 Packard, 142 N. Y. 47, 36 N. E. 823; 
 In re Kellogg, 96 App. Div. 608, 88 
 N. Y. S. 1033, affirmed 180 N. Y. 
 534, 72 K E. 1144; Steele v. Ham- 
 mond, 136 App. Div. 667, 121 N. 
 \. S. 589. 
 
 Rhode Island. — Gorman v. Banigan, 
 22 R. I. 22, 46 Atl. 38. 
 
 "It is very evident that the re- 
 sponsibility, the care, anxiety, and 
 mental labor, is much greater in a 
 case where the amount in controversy. 
 is large than where it is insignificant, 
 although, perhaps, the same questions 
 might be raised in each case, or the 
 more difficult questions arise in the 
 case where the amount was of but 
 slight consequence. Nor is this re- 
 sponsibility, care, and mental labor 
 dependent alone upon the number of 
 hours or days which may be given 
 to the preparation and trial or argu- 
 ment of a, case. This responsibility 
 and mental anxiety is not so imag- 
 inative and shadowy that it should 
 not be considered in arriving at a, 
 proper compensation to be allowed 
 in fixing the value of the services 
 rendered." Eggleston v. Boardman, 
 37 Mich. 17. See also Chamberlain 
 V. Rodgers, 79 Mich. 219, 44 N. W. 
 598. 
 
 iHaish V. Payson, 107 111. 365; 
 Garrigus v. Gilbert, 4 Ky. L. Rep. 
 1001 (abstract) ; Randall v. Pack- 
 ard, 142 ST. Y. 47, 36 N. E. 823; 
 Howard v. Charleston First Nat. 
 Bank, (Va.) 27 S. E. 492. 
 
 2 United States. — Lombard v. Bay- 
 ard, 1 Wall. Jr. (C. C.) 196, 15 Fed. 
 Cas. No. 8,469; Ward v. Kohn, 58 
 Fed. 462, 19 XJ. S. App. 280, 7 C. C. 
 A. 314; Graves v. Sanders, 125 Fed. 
 690, 60 C. C. A. 422, affirming 105 
 Fed. 849; Gilmore v. McBride, 150 
 Fed. 464, 84 C. C. A. 274. 
 
 California. — Cusick v. Boyne, 1 Cal. 
 App. 643, 82 Pac. 985. 
 
 Illinois. — McMannomy v. Chicago, 
 etc., R. Co., 167 111. 497, 47 N. E. 
 712, reversing 63 111. App. 259. 
 
 loioa. — Smith v. Chicago, etc., R. 
 Co., 60 la. 515, 15 N. W. 291; Gra- 
 ham V. Dubuque Specialty Mach. 
 Works, 138 la. 456, 114 N. W. 619, 
 15 L.R.A.(N.S.) 729. 
 
 Kansas. — Ottawa University v. 
 Parkinson, 14 Kan. 159. 
 
 Kentucky. — Morehead v. Anderson, 
 125 Ky. 77, 100 S. W. 340. 
 
 Louisiana. — Copley v. Harrison, 3 
 Rob. 83 ; Succession of Virgin, IS La. 
 Ann. 42; Breaux v. Francke, 30 La. 
 Ann. 336; Fenner v. McCan, 49 La. 
 Ann. 600, 21 So. 768. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14. 
 
 Mississippi. — Holly Springs v. 
 Manning, 55 Miss. 380. 
 
 Nevada. — Quint v. Ophir Silver 
 Min. Co., 4 Nev. 304. 
 
 New York. — Garfield v. Kirk, 65 
 Barb. 464; People v. Bond St. Sav. 
 Bank, 10 Abb. N. Cas. 15. 
 
 Permsylvania. — Kentucky Bank v. 
 Combs, 7 Pa. St. 543. 
 
 Tennessee. — Butler v. King, 48 S. 
 W. 697. 
 
 3 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. 
 Rep. 567. 
 
790 
 
 AMOUNT, ETC. OF COMPENSATION, 
 
 [§ 449 
 
 and (9) any other circumstance attending the cause which, ac- 
 cording to established usage, will serve as a guide in determining 
 what is a proper charge.* 
 
 So, in some instances, it has been deemed proper to consider the 
 customary fees charged by other lawyers in the same jurisdiction 
 for similar services ; ® to take into consideration the client's 
 
 Florida. — Stewart v. Beggs, 56 Fla. 
 565, 47 So. 932. 
 
 Iowa. — Stevens r. Ellsworth, 95 la. 
 231, 63 N. W. 683; Graham v. Du- 
 buque Specialty Mach. Work, 138 
 la. 456, 114 N. W. 619, 15 L.E.A. 
 (N.S.) 729. 
 
 Kentucky. — Louisville Gas Co. v. 
 Hargis, 33 S. W. 946 ; Germania Safe- 
 ty Vault & Trust Co.'s Assignee v. 
 Hargis, 64 S. W. 516, 23 Ky. L. Rep. 
 874; Bowser v. Patrick, 65 S. W. 
 824, 23 Ky. L. Rep. 1578. 
 
 Louisiana. — Rutland v. Cobb, 32 
 La. Ann. 857. 
 
 Michigan-. — Eggleston v. Boardman, 
 37 Mich. 14. 
 
 Minnesota. — Selover v. Bryant, 54 
 Minn. 434, 56 N. W. 58, 40 Am. St. 
 Rep. 349, 21 L.R.A. 418. 
 
 Missouri. — Trimble v. Kansas City, 
 etc., R. Co., 201 Mo. 372, 100 S. W. 
 7. 
 
 New York. — Randall v. Packard, 
 142 N. Y. 47, 36 N. E. 823, affirming 
 I Misc. 344, 20 N. Y. S. 716; Hemp- 
 stead V. New York, 86 App. Div. 
 300, 83 N. Y. S. 806; Steele u. Ham- 
 mond, 136 App. Div. 667, 121 N. Y. S. 
 589; Schlesinger v. Dunne, 36 Misc. 
 529, 10 N-. Y. Ann. Cas. 350, 73 N. 
 Y. S. 1014. 
 
 Oregon. — Hamilton v. Holmes, 48 
 Ore. 453, 87 Pac. 154. 
 
 Pennsylvania. — Heblich v. Sla.ter, 
 217 Pa. St. 404, 66 Atl. 655. 
 
 Rhode Island. — Gorman v. Bauigan, 
 22 R. I. 22, 46 Atl. 38. 
 
 Tennessee. — Butler v. King, 48 S. 
 W. 697. 
 
 4 Holly Springs v. Manning, 55 
 Miss. 380. 
 
 5 Illinois. — Louisville, etc., R. Co. v. 
 Wallace, 136 111. 87, 26 N. E. 493, 
 11 L.R.A. 787; Nathan v. Brand, 167 
 111. 607, 47 N. E. 771, affirming 67 111. 
 App. 540; Bingham v. Spruill, 97 
 111. App. 374. 
 
 loica. — Clark v. Ellsworth, 104 la. 
 442, 73 N. W. 1023. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14. 
 
 Rhode Island. — Gorman v. Banigan, 
 22 R. I. 22, 46 Atl. 38. 
 
 In Eggleston v. Boardman, 37 
 Mich. 14, it was said that the amount 
 charged by an attorney in a certain 
 case cannot fairly be considered as 
 evidence competent to fix the value 
 of the services rendered by the at- 
 torney for the other parties in the 
 same case. The amount paid in a 
 particular case cannot be considered 
 or accepted as the proper amount in 
 all like cases. It is not like the 
 sale of certain commodities, where 
 the price at which an article sold 
 may have a tendency to fix or show 
 the market price. There mjay be pe- 
 culiar circumstances or elements 
 which assisted in fixing the amount 
 paid in one case, which would not 
 exist in another, or even between 
 counsel of equal standing in the 
 same case, both in the character of 
 the work, and in the amount and 
 
§ 449] 
 
 OF COMPENSATION. 
 
 791 
 
 wealth,® and whether or not the agreement for compensation was 
 contingent on success ; ' and to inchide a reasonable retaining fee.' 
 But, as regulations adopted by members of the bar can operate 
 only as between those who assent to them, a client is not neces- 
 sarily bound to pay for the services of an attorney or counsel ac- 
 cording to rates which may have been prescribed therefor by an 
 association of the bar, in the absence of a special agreement to 
 that effect, or of proof that the client employed the attorney with 
 knowledge of, and implied assent to, the bar rules.® Nor are at- 
 torneys limited to the amount which the state pays its officials for 
 like services.'" 'Nor is it material what the adverse party might 
 have paid the attorney if he had been retained by them.'' 
 
 kind of preparation required. The 
 question is what were plaintiff's serv- 
 ices reasonably worth, and this must 
 be determined from the prices usually 
 charged for similar services. 
 
 6 United States. — Lombard v. Bay- 
 ard, 1 Wall. Jr. (C. C.) 196, In Fed. 
 Caa. No. 8,469; Ward v. Kohn, 58 
 Fed. 462, 19 U. S. App. 280, 7 C. C. 
 A. 314. 
 
 Louisiana. — Breaux v. Francke, 30 
 La. Ann. 336. 
 
 New York. — Randall r. Packard, 
 142 N. Y. 47, 36 N. E. 823. 
 
 Texas. — International, etc., R. Co. 
 V. Clark, 81 Tex. 48, 16 S. W. 631. 
 
 Compare Stevens r. Ellsworth, 95 
 la. 321, 63 N. W. 683, wherein it 
 was said: "We think no court has 
 ever said that, with the facts the 
 same, a reasonable compensation for 
 a professional service for a poor man 
 is worth leas than the same service 
 for a rich man. It is likely true 
 that less is often taken from the 
 poor than from the rich, but the rea- 
 son is not because of a difference in 
 what the service is reasonably worth, 
 but because of a disposition of pro- 
 fessional persons to charge less in 
 such cases, even to the extent, in 
 some cases, of making it a gratuity, 
 
 or a mere trifle. The practice 'S to 
 be commended, but not under a rule 
 that they may, while thus giving to 
 one, take, because of that fact, from 
 another. If it is the rule that fees 
 may be enhanced because of the 
 wealth of the client, we do not see 
 why, in a case where the client is 
 poor, that fact may not be shown 
 to lessen the compensation, and such 
 a rule has never obtained." 
 
 7Frink v. McComb, 60 Fed. 486; 
 Smith V. Couch, 117 Mo. App. 267, 
 92 S. W. 1143; Hamilton v. Holmes, 
 48 Ore. 453, 87 Pac. 154; Mumma's 
 Appeal, 127 Pa. St. 474, 18 Atl. 6. 
 See also Morehouse v. Brooklyn 
 Heights R. Co., 123 App. Div. 680, 
 108 N. Y. S. 152 ; Steele v. Hammond, 
 136 App. Div. 667, 121 N. Y. S. 
 589. Compare O'Neill v. Crane, 65 
 App. Div. 358, 72 N. Y. S. 812. 
 
 8 Roche r. Baldwin, 143 Cal. 186, 
 76 Pac. 956; Mellon r. Fulton, 22 
 Okla. 636, 98 Pac. 911, 19 L.R.A. 
 (N.S.) 960. 
 
 SBoylan v. Holt, 45 Miss. 277. 
 
 10 Hyde f. Moxie Nerve-Food Co., 
 160 Mass. 559, 36 N. E. 585. 
 
 11 Steenerson r. Waterbury, , 52 
 Minn. 211, 53 N. W. 1146. 
 
792 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 450 
 
 On Premature Termination of Employment Generally. 
 
 § 450. Performance Prevented by Client. — The right of 
 the client to discharge his attorney at will, subject only to the obli- 
 gation to pay him a fair compensation for his services, is beyond 
 question. '* The attorney may recover the reasonable value of his 
 services on a quantum meruit where he has been discharged with- 
 out cause,'* or' where the client, in any other manner, wrongfully 
 prevents the performance of the duties undertaken by the 
 attorney.** 
 
 18 See supra, §§ 137, 138. 
 
 13 Arkansas. — Weil v. Finneran, 70 
 Ark. 509, 69 S. W. 310. 
 
 Illinois. — Union Surety & Guar- 
 anty Co. V. Tenney, 102 111. App. 95, 
 affirmed 200 III. 349, 65 N. E. 688. 
 
 Indiana. — Soobey v. Ross, 5 Ind. 
 445. 
 
 Kentucky. — Henry v. Vance, 111 
 Ky. 72, 63 S. W. 273; Bowser v. Pat- 
 riclc, 65 S. W. 824, 23 Ky. L. Rep. 
 1578; Breathitt Coal, etc., Co. v. 
 Gregory, 78 S. W. 148, 25 Ky. L. Rep. 
 1507; Joseph v. Lapp, 78 S. W. 1119, 
 25 Ky. L. Rep. 1875; Goodin v. Hays, 
 88 S. W. 1101, 28 Ky. L. Rep. 112. 
 
 Missouri. — Duke v. Harper, 8 Mo. 
 App. 296; Dempsey v. Dorranee, 151 
 Mo. App. 429, 132 S. W. 33. 
 
 Nevada. — Quint v. Opliir Silver 
 Min. Co., 4 Nev. 304. 
 
 New Hampshire. — Young v. Dear- 
 born, 27 N. H. 324. 
 
 New York. — Marsh v. Holbrook, 3 
 Abb. App. Dee. 178; Grant v. Lang- 
 ley, 34 Misc. 776, 68 N. Y. S. 820; 
 Dailey v. Devlin, 21 App. Div. 62, 47 
 N. Y. S. 296; Whitesell v. New Jer- 
 sey & H. R. R. & F. Co., 68 App. Div. 
 82, 74 N. Y. S. 217; Johnson v. 
 Raviteh, 113 App. Div. 810, 921, 99 
 N. Y. S. 1059, 100 N. Y. S. 1123. 
 
 North Carolina. — Leach v. Strange, 
 10 N. C. 601. 
 
 Pennsylvania. — Com. v. Terry, 11 
 Pa. Super. Ct. 547. 
 
 Texas. — Sulzbacher v. Wilkinson, 1 
 White & W. Civ. Cas. Ct. App. § 
 994; Myers v. Crockett, 14 Tex. 257; 
 Crye v. O'Neal, 135 S. W. 253. 
 
 Utah. — Price v. Western Loan, etc., 
 Co., 35 Utah 379, 19 Ann. Cas. 589, 
 100 Pac. 677. 
 
 Washington. — Schultheis v. Nash, 
 27 Wash. 250, 67 Pac. 707. 
 
 West Virginia. — Matheny v. Far- 
 ley, 66 W. Va. 680, 66 S. E. 1060. 
 
 1* England. — Read v. Dupper, 6 T. 
 R. 361. 
 
 United States. — Louisville, etc., R. 
 Co. V. Wilson, 138 U. S. 507, 11 S. 
 Ct. 405, 34 U. S. (L. ed.) 1023. 
 
 Alabama. — Hall v. Gunter, 157 Ala. 
 375, 47 So. 155. 
 
 Arkansas. — Brodie v. Watkins, 33 
 Ark. 545, 34 Am. Rep. 49. 
 
 California. — Webb v. Trescony, 76 
 Cal. 621, 18 Pac. 796. 
 
 Georgia. — Cokcr v. Oliver, 4 Ga. 
 App. 728, 62 S. E. 483. 
 
 Illinois. — Moore v. Robinson, 92 
 111. 491; Mt. Vernon v. Patton, 94 
 111. 65; Pratt v. Kerns, 123 111. App. 
 86. 
 
 Indiana. — Scobey v. Ross, 5 Ind. 
 445; French v. Cunningham, 149 Ind. 
 632, 49 N. E. 797. 
 
 Iowa. — EUwood v. Wilson, 21 la. 
 
§ ^50] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 793 
 
 In some jurisdictions the attorney may recover damages for the 
 breach of the contract of employment ; '* the measure of damages 
 being the unpaid amount of the compensation stipulated for in 
 
 .')23; Cullison V. Lindsay, 108 la. 124, 
 78 N. W. 847. 
 
 Kansas. — Durkee v. Gunn, 41 Kan. 
 496, 21 Pac. 637, 13 Am. St. Kep. 
 300. 
 
 Kentucky. — Majors v. Hickman, 2 
 Bibb 217; Henry v. Vance, 111 Ky. 
 72, 63 S. W. 273; Warren Deposit 
 Bank v. Barclay, 60 S. W. 853, 22 Ky. 
 L. Eep. 1555; Breathitt Coal, etc., 
 Co. V. Gregory, 78 S. W. 148, 25 Ky. 
 L. Eep. 1507; Joseph v. Lapp, 78 
 S. W. 1119, 25 Ky. L. Rep. 1875; 
 Goodin v. Hays, 88 S. W. 1101, 28 Ky. 
 L. Rep. 112. 
 
 Maryland. — Western Union Tel. 
 Co. V. Semmes, 73 Md. 9, 20 Atl. 127. 
 
 Massachusetts. — Philbrook v. Mox- 
 ey, 191 Mass. 33, 77 N. E. 520. 
 
 Michigan. — Millard v. Jordan, 76 
 iUeh. 131, 42 N. W. 1085. 
 
 Minnesota. — Moyer v. Cantieny, 41 
 Minn. 242, 42 N. W. 1060. 
 
 Missouri. — ^Kersey v. Garton, 77 
 Mo. 645; Reynolds v. Clark County, 
 162 Mo. 680, 63 S. W. 382; McEl- 
 liinney v. Kline, 6 Mo. App. 94; Duke 
 !. Harper, 8 Mo. App. 296; Bissell 
 r. Zorn, 122 Mo. App. 688, 99 S. W. 
 458; Young v. Lanznar, 133 Mo. App. 
 130, 112 S. W. 17. 
 
 Montana. — Harris v. Root, 28 Mont. 
 159, 72 Pac. 429; Foley v. Klein- 
 schmidt, 28 Mont. 198, 72 Pac. 432. 
 
 Nevada. — Quint v. Ophir Silver 
 Min. Co., 4 Nev. 304. 
 
 New York. — Carey v. Gnant, 59 
 Barb. 574; Matter of Cable, 114 App. 
 Div. 375, 99 N. Y. S. 1096; Roake 
 /. Palmer, 119 App. Div. 64, 103 N. 
 Y. S. 862; Clark i'. Nichols, 127 App. 
 Div. 219, 111 N. Y. S. 66; Badger v. 
 
 Mayer, 8 Misc. 533, 28 N. Y. S. 765; 
 Seasongood v. Prager, 70 Misc. 490, 
 127 N. Y. S. 482; Yuells v. Hyman, 
 84 N. Y. S. 460. 
 
 Pennsylvania. — Com. v. Terry. 11 
 Pa. Super. Ct. 547. 
 
 Texas. — Allcorn v. Butler, 9 Tex. 
 56; Myers v. Crockett, 14 Tex. 257; 
 Hill V. Cunningham, 25 Tex. 25. 
 
 Utah. — Potter v. Ajax Min. Co., 22 
 Utah 273, 61 Pac. 999; Price v. West- 
 ern Loan, etc., Co., 35 Utah 370, 19 
 Ann. Cas. 589, 100 Pac. 677. 
 
 Virginia. — Miller v. Penniman, 110 
 Va. 780, 67 S. E. 516; Howard v. 
 Charleston First Nat. Bank, 27 S. E. 
 492. 
 
 West Virginia. — Polsley v. Ander- 
 son, 7 W. Va. 202, 23 Am. Rep. 613; 
 Peck V. Marling, 22 W. Va. 708 ; Tom- 
 linson v. Polsley, 31 W. Va. 108, 5 
 S. E. 457; Matheny v. Farley, 66 W. 
 Va. 680, 66 S. E. 1060. 
 
 15 Arkansas. — Brodie !;. Watkins, 
 33 Ark. 545, 34 Am. Rep. 49. 
 
 California. — Webb v. Trescony, 76 
 Cal. 621, 18 Pac. 796. 
 
 Kentucky. — Henry t\ Vance, 111 
 Ky. 72, 63 S. W. 273; Breatliitt Coal, 
 etc., Co. V. Gregory, 78 S. W. 148, 
 25 Ky. L. Rep. 1507; Joseph v. Lapp, 
 78 S. W. 1119, 25 Ky. L. Rep. 1875; 
 Goodin v. Hays, 88 S. W. 1101, 28 
 Ky. L. Rep. 112. 
 
 Missouri. — Kersey v. Garton, 77 
 Mo. 645; McElhinney v. Kline, 6 Mo. 
 App. 94. 
 
 Nebraska.-'-ShevaMeT v. Doyle, 88 
 Neb. 560, 130 N. W. 417. 
 
 New York. — Carey v. Gnant, 59 
 Barb. 574; Carlisle v. Barnes, 102 
 App. Div. 573, 92 N. Y. S. 917; Bad- 
 
794- 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 450 
 
 the contract/® excepting that, as a general rule, where the fees 
 are contingent on success the damages must be confined to rea- 
 sonable compensation for the services actually rendered. '' 
 
 ger V. Mayer, 8 Misc. 533, 28 N. Y. 
 S. 765; Grant v. Langley, 34 Misc. 
 776, 68 N. Y. S. 820. 
 
 North Carolina. — Johnston v. Cut- 
 cliin, 133 N. C. 119, 45 S. E. 522. 
 
 Ohio. — Solieinsohn v. Lemonek, 84 
 Ohio St. 424, Ann. Cas. 1912C 737, 
 95 N. E. 913. 
 
 Texas. — Lynch v. Munson, 61 S. W. 
 140. 
 
 West Virginia. — Polsley v. Ander- 
 son, 7 W. Va. 202, 23 Am. Rep. 613. 
 
 16 Arkansas. — Brodie v. Watkins, 
 33 Ark. 545, 34 Am. Rep. 49 ; Weil v. 
 Fineran, 78 Ark. 87, 93 S. W. 568. 
 
 California. — Webb v. Trescony. 76 
 Cal. 621, 18 Pac. 796; Bartlett v. 
 Odd-Fellows' Sav. Bank, 79 Cal. 218, 
 21 Pac. 743, 12 Am. St. Rep. 139. 
 
 District of Columbia.-r-MacKia v. 
 Howland, 3 App. Cas. 461. 
 
 Michigan. — Millard v. Jordan, 76 
 Mich. 131, 42 N. W. 1085. 
 
 Minnesota. — Moyer v. Cantieny, 41 
 Minn. 242, 42 N. W. 1060. 
 
 Missouri. — Kersey v. Carton. 77 
 Mo. 645, 5 Ky. L. Rep. 2, 16 Cent. L. 
 J. 472; McElhinney v. Kline, 6 Mo. 
 App. 94. 
 
 'New York. — Marsh v. Holbrook, 3 
 Abb. App. Dec. 176; Carlisle v. 
 Barnes, 102 App. Div. 573, 92 N. Y. 
 S. 917; Grant ti. Langley, 34 Misc. 
 776, 68 N. Y. S. 820. 
 
 Ohio. — Seheinesohn t'. Lemonek, 84 
 Ohio St. 424, Ann. Cas. 1912C 737, 
 95 N. E. 913. 
 
 Tennessee. — McClain v. Williams, 
 8 Yerg. 230; Cantrell v. Chism, 5 
 Sneed 116. See also Bright i;. Taylor, 
 4 Sneed 159. 
 
 Texas. — Allcorn r. Butler, 9 Tex. 
 56; Hill V. Cunningham, 25 Tex. 25. 
 
 Washington. — Schultheis v. Nash, 
 27 Wash. 250, 67 Pac. 707; Sessions 
 V. Warwick, 46 Wash. 165, 89 Pac. 
 482. 
 
 West Virginia. — I'olsley v. Ander- 
 son, 7 W. Va. 202, 23 Am. Rep. 613. 
 
 Reason of Rule. — In Kersey v. Gar- 
 ton, 77 Mo. 646, the court said: 
 "And there is much force in the view 
 that contracts such as the one be- 
 fore us are, from the nature of the 
 engagement, from the peculiar and 
 confidential relations existing be- 
 tween the parties thereto, from the 
 fact that an attorney when discharged 
 by his client is prevented from ac- 
 cepting employment in the same 
 cause by the adverse party, froin the 
 fact of its being practically impos- 
 sible to determine the value of an 
 attorney's services up to the time of 
 his dismissal, and from the fact of 
 the impossibility of ascertaining the 
 measure of his damages — that tliese 
 circumstances should exempt such a 
 contract from those rules whicli pre- 
 vail in cases of contracts differing 
 so widely in these essential particu- 
 lars from that under discussion, and 
 should lix the measure of damages 
 at the price agreed to be paid." 
 
 Allowance for Part Unperformed. — 
 In Goodin v. Hays, 88 S. W. 1101, 28 
 Ky. L. Rep. 112, it was said that the 
 jury should allow the contract price 
 abated by such sum as reasonably 
 represents the unperformed part of 
 the work undertaken. And see Weil 
 c. Fineran, 78 Ark. 87, 93 S. W. 568. 
 
 "Western Union Tel. Co. v. 
 
§ 450] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 795 
 
 But wliere tte attorney has been discharged for good and justi- 
 fiable cause/' be is precluded from recovering either in damages 
 or on a qvAintum meruit}^ 
 
 Semmes, 73 Md. 9, 20 Atl. 127; Bad- 
 ger V. Mayer, 8 Misc. 533, 28 N. Y. 
 S. 765; Polsley v. Anderson, 7 W. 
 Va. 202, 23 Am. Rep. 613. 
 
 Where a contract is to perform 
 something in the future, the success- 
 ful result of which is therefore neces- 
 sarily uncertain, and performance is 
 wrongfully prevented by the other 
 party, a speculative element is un- 
 avoidably introduced into the ques- 
 tion of damages, but cannot take 
 away the right to just compensation. 
 In such cases all that can be reason- 
 ably required of plaintiff is to pro- 
 duce to the jury sufficient evidence, 
 of the best character obtainable, of 
 a fair prospect of success, and the 
 compensation which would have fol- 
 lowed. Williams v. Philadelphia, 208 
 Pa. St. 282, 57 Atl. 578. 
 
 "Taylor v. Perkins, (Mo.) 157 S. 
 W. 122. And see supra, §§ 137, 138. 
 
 19 California. — Cahill v. Baird, 70 
 Pac. 1061. 
 
 Illinois. — Walsh v. Shumway, 65 
 111. 471. 
 
 Indiana. — See McDowell v. Baker, 
 29 Ind. 481. 
 
 Kansas. — McArthur v. Fry, 10 Kan. 
 233. 
 
 Missouri. — Taylor v. Perkins, 157 
 S. W. 122. 
 
 "New York. — Holmes v. Evans, 129 
 N. Y. 140, 29 N. E. 233. 
 
 Tennessee. — Moyers v. Graham, 15 
 Lea 57. 
 
 Conduct Adverse to Client. — Where 
 an attorney was employed to attend 
 to a suit about certain specified lands, 
 "and to attend to all other litigations 
 
 concerning said lands, he agreeing to 
 attend to the same and to furnish all 
 moneys necessary to conduct said liti- 
 gation," and at the time was engaged 
 in prosecuting an action for another 
 party, in reference to the same land, 
 adverse in interest to that of hia em- 
 ployer, and continued to prosecute 
 such adverse action, his client was 
 held to have sufficient grounds to dis- 
 charge him, and when she had done so 
 he could not demand a specific per- 
 formance on the client's part of the 
 terms of the contract of employment. 
 McArthur i. Fry, 10 Kan. 233. See 
 also generally, supra, §§ 152-182, as 
 to representing and acquiring ad- 
 verse interests. 
 
 Where an attorney was employed to 
 defend a party on a criminal charge, 
 upon a fee to be paid after such serv- 
 ices were rendered, and upon tender- 
 ing such services was told by his client 
 that he would"no longer need them, as 
 other counsel had been employed, 
 whereupon the attorney informed hira 
 that he was ready to comply with his 
 contract, and would make him do so, 
 but volunteered his services and as- 
 sisted in the prosecution of the case, 
 it was lield that although the attor- 
 ney might have recovered liis fee by a 
 continual tender and readiness to per- 
 form his part of the contract until 
 the case was ended, yet his volunteer- 
 ing on the other side and actually as- 
 sisting in the prosecution was an 
 abandonment of the contract, and he 
 thereby forfeited his right to any re- 
 covery. Cantrell v. Chism, 5 Sneed 
 (Tenn.) 116. 
 
V96 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 451 
 
 The right to compensation, and the amount thereof, on the set- 
 tlement of the cause by the client will be considered hereafter.*" 
 
 § 451. Performance Prevented by Substitution. — While 
 the right of a client to discharge his attorney at any time,' and 
 also to substitute another in his stead,* is not doubted, neverthe- 
 less, in such cases the counsel originally engaged will b6 protected 
 in the matter of compensation ' to the extent of the reasonable 
 value of the services performed down to the time the substitution is 
 allowed ; * and it is immaterial that, under his agreement with the 
 client, his compensation was to be contingent upon the successful 
 outcome of the litigation,' providing such agreements are not fatal- 
 
 Compare Goodin v. Hays, 88 S. W. 
 1101, 28 Ky. L. Eep. 112, wherein it 
 was said that if the attorney was dis- 
 charged for cause, he should be al- 
 lowed reasonable compensation for his 
 services without regard to the eon- 
 tract under which services were ren- 
 dered. 
 
 20 See infra, §§ 456-460. 
 
 1 See supra, §§ 137, 138. 
 
 2 See supra, §'§ 143-150. 
 
 3 See supra, §§ 147, 148. 
 
 * United States. — Sloo v. Law, 4 
 Blatchf. 268, 22 Fed. Cas. No. 12958; 
 Such V. New York Bank, 121 Fed. 
 202; Du Bois v. New York, 134 Fed. 
 570, 69 C. C. A. 112. 
 
 Alabama. — Coopwood v. Wallace, 12 
 Ala. 790. 
 
 District of Columbia. — MacKie v. 
 Rowland, 3 App. Cas. 461. 
 
 Kentucky. — Henry v. Vance, 111 
 Ky. 72, 63 S. W. 273; Root o. Mcll- 
 vaine, 56 S. W. 498, 22 Ky. L. Rep. 7 ; 
 Joseph V. Lapp, 78 S. E. 1119, 25 Ky. 
 L. Rep. 1875. 
 
 Louisiana. — Morel v. New Orleans, 
 12 La. Ann. 485; Commandeur v. Car- 
 roUton, 15 La. Ann. 7; Bright v. 
 Hewes, 18 La. Ann. 666. 
 
 Michigan. — Detroit v. Whittemore, 
 27 Mich. 281. 
 
 Missouri. — State v. Hawkins, 28 
 Mo. 366. 
 
 New York. — Creighton v. Ingersoll, 
 20 Barb. 541; Bryant v. Brooklyn 
 Heights R. Co., 64 App. Div. 542, 72 
 N. Y. S. 308; Johnson v. Ravitch, 113 
 App. Div. 810, 99 N. Y. S. 1059; In re 
 Cable, 114 App. Div. 375, 99 N. Y. S. 
 1096; Frost v. Reinach, 40 Misc. 412, 
 81 N. Y. S. 246. See also Hammond v. 
 Dean, 4 Hun 131, 6 Thomp. & C. 337; 
 Creiger v. Cheesbrough, 25 How. Pr. 
 200; Carlisle v. Barnes, 102 App. Div. 
 573, 92 N. Y. S. 917. 
 
 rea;os.— Raley v. Smith, 73 S. W. 
 54. 
 
 Washington. — Payett v. Willis, 23 
 Wash. 299, 63 Pac. 254; Schultheis r. 
 Nash, 27 Wash. 250, 67 Pac. 707. 
 
 West Virginia. — Matheny v. Farley, 
 66 W. Va. 680, 66 S. E. 1060. 
 
 Wisconsin. — Cotzhausen v. Central 
 Trust Co., 79 Wis. 613, 49 N. W. 158. 
 
 5 United States. — Ronald r. Mutual 
 Reserve Fund L. Assoc, 30 Fed. 228; 
 Such ^^ New York State Bank, 121 
 Fed. 202; New York Phonograph Co. 
 
452] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 797 
 
 ly objectionable under the local law.® The amount to which coun- 
 sel is entitled will be determined by the court with or without the 
 aid of a reference as the circumstances may seem to warrant.' 
 
 § 452. Impossibility of Performance. — Where complete 
 performance by the attorney of his contract of employment be- 
 comes impossible without fault on the part of either party, the 
 attorney may recover the value of the services actually rendered by 
 him.' It has been so held where performance was prevented by 
 unforeseen conditions.* A like rule prevails where performance 
 
 V. Edison Phonograph Co.. 150 Fed. 
 233; Carver v. V. S., 7 Ct. CI. 499. 
 
 California. — Bartlett v. Odd Fel- 
 lows' Sav. Bank, 79 Cal. 218, 21 Pae. 
 743, 12 Am. St. Rep. 139; Craddock 
 ). O'Brien, 104 Cal. 217, 37 Pac. 896; 
 Gage V. Atwater, 136 Cal. 170, 68 Pac. 
 581. 
 
 New York. — Bryant v. Brooklyn 
 Heights R. Co., 64 App. Div. 542, 72 
 N. Y. S. 308; Carlisle v. Barnes, 102 
 App. Div. 573, 92 N. Y. S. 917; 
 Roake v. Palmer, 119 App. Div. 64, 
 103 N. Y. S. 862. 
 
 6 See supra, §§ 386-397, 421-427. 
 See also Silverman v. Pennsylvania 
 R. Co., 141 Fed. 382. 
 
 T See supra, § 148. See also Scheu 
 V. Blum, 124 App. Div. 678, 109 N. Y. 
 S. 130; Frost v. Reinach, 40 Misc. 412, 
 81 N. Y. S. 246 ; Gardiner v. Tyler, 36 
 How. Pr. (N. Y.) 63, 5 Abb. Pr. N. S. 
 33. 
 
 On the withdraiaal of an applica- 
 tion for substitution, an order fixing 
 the amount of compensation to which 
 the original counsel is entitled, as a 
 condition precedent, is unenforceable. 
 Gardiner v. Tyler, 36 How. Pr. (N. 
 Y.) 63, 5 Abb. Pr. N. S. 33. 
 
 8 Moore v. Robinson, 92 111. 491; 
 Lewis V. Omaha St. R. Co., (Neb.) 
 114 N. W. 281. 
 
 9 Warren Dep. Bank v. Barclay, 60 
 S. W. 853, 22 Ky. L. Rep. 1555. 
 
 Act of God or Unavoidaile Casiial- 
 ti/.^Although it is true that a con- 
 tract for legal services is personal in 
 its nature and non-assignable, and 
 that disability discharges such a con- 
 tract, nevertheless, the occurrence of 
 a disability after a special contract 
 for services has been partly per- 
 formed, does not prevent the disabled 
 party, if the breach of the contract 
 was made through no fault of his own, 
 but by the act of God or unavoidable 
 casualty, from recovering upon a 
 quantum meruit for the reasonable 
 value of the services rendered prior to 
 the disability. This is the more mod- 
 ern rule, and is founded on justice 
 and right. Lewis v. Omaha St. R. 
 Co., (Neb.) 114 N. W. 281. 
 
 Where an attorney becomes a judge, 
 and, in consequence, is prohibited by 
 law from appearing as an attorney in 
 any court of record in the state, he 
 will nevertheless be entitled to com- 
 pensation for services rendered in a 
 case up to the time of his incapacity. 
 Baird v. Ratcliff, 10 Tex. 81. 
 
 Statute Declared Void. — An attor-. 
 ney employed to conduct proceedings 
 under a statute for the drainage of 
 swamp lands is entitled to recover for 
 
798 AMOUNT, ETC. OF COMPENSATION. [§ 453 
 
 becomes impossible through the fault of both parties.*" It is other- 
 wise, however, where such impossibility is caused by the fault of 
 the attorney ; thiis if the attorney becomes incapable of completing 
 the services he has undertaken by reason of his being disbarred, 
 he will not be entitled to claim anything under his contract of em- 
 ployment by way of compensation.** But the physical disability 
 of the attorney to perform the duties undertaken by him does not, 
 it seems, prevent him from recovering the reasonable value of his 
 
 § 453. Abandonment by Attorney. — The right of an attor- 
 ney to compensation when he has abandoned his contract of em- 
 ployment depends on whether he was justified in the abandon- 
 ment. This subject has been considered heretofore in connection 
 with the termination of the relation of attorney and client.*' 
 
 Where an attorney agrees to render certain services for a stipu- 
 lated fee, and performance on his part is a condition precedent to 
 payment, his failure, without justification, to perform the business 
 so undertaken will be deemed to be a forfeiture of his right to 
 compensation under the contract.** Indeed, to demand compensa- 
 
 services rendered in litigation involv- 13 See supra, § 139. 
 
 ing the validity of the statute and ap- 1* Alabama. — Troy v. Hall, 157 Ala. 
 
 peals necessitated in such proceedings 592, 47 So. 1035. 
 
 where the clients knew of the litiga- California. — Houghton v. Clarke, 
 
 tion and of the attorney's appear- 80 Cal. 417, 22 Pac. 288. 
 
 ance in good faith in their behalf, Connecticut. — Brackett v. Norton, 
 
 in support of the validity of the only 4 Conn. 517, 10 Am. Dec. 179. 
 
 statute authorizing the proceedings, Illinois.— M.oTga.ji v. Roberts, 38 111. 
 
 though he failed to accomplish the re- 65. 
 
 suit desired because of the statute Kentucky.— Henry v. Vance, 111 
 
 being declared invalid. Sanford v. Ky. 72, 63 S. W. 273. 
 
 Bronson, 109 App. Div. 835, 96 N. Y. Missouri. — White v. Wright, 16 
 
 S. 859. Mo. App. 551; Blanton v. King, 73 
 
 10 Price V. Western Loan & Savings Mo. App. 148 ; Young v. Lanznar, 133 
 Co., 35 Utah 379, 19 Ann. Cas. 589, Mo. App. 130, 112 S. W. 17. 
 
 100 Pac. 677. New YorA;.— Holmes v. Evans, 129 
 
 11 Moyers v. Graham, 15 Lea N. Y. 140, 29 N. E. 233 ; Gary v. Cary, 
 (Tenn.) 57; Threadgill v. Shaw, 97 App. Div. 471, 89 N. Y. S. 1061; 
 (Tex.) 148 S. W. 825. McDonald v. De Vito, 118 App. Div. 
 
 13 Lewis V. Omaha St. R. Co., 566, 103 N. Y. S. 508; Buckley v. 
 (Neb.) 114 N. W. 281. Buckley, 64 Hun 632 mem., 18 N. Y. 
 
§ 453] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 799 
 
 tion in the face of such an abandonment has been considered un- 
 professional and unconscientious.^^ Thus, it is a complete de- 
 fense to an action on a quantum meruit for professional services, 
 that the attorney agreed before entering on the case to prosecute 
 it to the court of last resort for a certain fee, and that subsequent- 
 ly, after losing it below, he refused to prosecute it to the highest 
 court unless paid for it, and that, thereupon, he was dismissed.^* 
 So, an attorney who contracts to collect a debt on a contingent fee 
 is precluded from recovering such fee where he abandons the col- 
 lection,''' and it is immaterial that his client subsequently col- 
 lected the amount due.*' 
 
 The mere fact that counsel whose compensation was contingent 
 on the result of litigation, requested a "payment on account of serv- 
 ices," pending the action, which was not granted, does not consti- 
 
 S. 607. And see Seasongood v. Prager, 
 H6 App. Div. 833, 131 N. Y. S. 771, 
 reversing 70 Misc. 490, 127 N. Y. S. 
 482. 
 
 North Carolina. — Potts o. Francis, 
 43 N. C. 300. 
 
 South Carolina. — Clendinen v. 
 Black, 2 Bailey Eq. 488, 23 Am. Dec. 
 149. 
 
 Texas.— Crye u. O'Neal, 135 S. W. 
 253. 
 
 Virginia. — Miller v. Penniman, 110 
 Va. 780, 67 S. E. 516. 
 
 Washington. — Farwell v. Colman, 
 35 Wash. 308, 77 Pac. 379. 
 
 West Virginia. — Matheny v. Farley, 
 66 W. Va. 680, 66 S. E. 1060. 
 
 It is the peculiar tact and ability 
 of the particular lawyer that is con- 
 tracted for, and naturally the client 
 must have an interest in retaining the 
 attorney throughout the litigation so 
 as to avail himself of the advantages 
 derived by the counsel's thorough ac- 
 quaintance with the law and the facts 
 acquired during the progress of the 
 litigation. Blanton v. King, 73 Mo. 
 App. 148. 
 
 Where a client engages a firm to 
 prosecute a case, and one of the firm 
 dies, and the client consents that a 
 new firm into which the surviving 
 partner enters shall continue in the 
 case, and the senior member abandons 
 the case, and the surviving partner of 
 the old firm does nothing except to 
 Iceep himself informed as to the 8ta<;us 
 of the case for over five years, his 
 conduct is a ratification of the act of 
 the senior member in abandoning the 
 case, and neither the new firm nor the 
 surviving partner of the old firm is 
 entitled to compensation. Troy v. 
 Hall, 157 Ala. 592, 47 So. 1035. 
 
 15 Potts V. Francis, 43 N. C. 300. 
 
 16 Douglass V. Downend, 30 Ohio 
 Cir. Ct. Eep. 649. 
 
 17 Pennington v. Underwood, 56 
 Ark. 53, 19 S. W. 108; Scoville v. 
 School Trustees, 65 111. 523; Sirarall 
 I'. Morton, 12 S. W. 185, 12 Ky. L. 
 Rep. 31. 
 
 18 Scoville V. School Trustees, 65 
 111. 623. 
 
800 AMOUNT, ETC. OF COMPENSATION. [§ 453 
 
 tute an abandonment ; *® but, imder such a contract, an attorney 
 who refuses to go on with the litigation without an agreement for 
 additional compensation, is chargeable with the abandonment of 
 his employment.*" So, abandonment may be inferred from 
 long-continued neglect.^ Advising the client to dispense with 
 either the counsel giving the advice or his associate is not an 
 abandonment.* 
 
 Where an attorney is justified in abandoning the employment,' 
 he is entitled to reasonable compensation for the services actually 
 rendered.* He should, however, notify the client of his with- 
 drawal ; and, although the consent of the court is not always essen- 
 tial,* especially where the attorney must act hurriedly, or does 
 not appear as attorney of record, one who appears of record as 
 attorney should not abandon the cause without the sanction of the 
 court, not only because of the confusion which might ensue from 
 the unheralded abandonment of causes by attorneys, but also for 
 the protection of the attorney should afterthought, or the lack of 
 it, be instrumental in testing his liability for negligence.^ The 
 burden of proof is on a client who asserts that the attorney 
 has forfeited his claim to compensation by abandoning the 
 employment.'' 
 
 19 Frink r. McComb, 60 Fed. 486. Allen 274, 83 Am. Dec. 683 ; Powers 
 
 20 Houghton i\ Clark, 80 Cal. 417, v. Manning, 154 Mass. 370, 28 N. E. 
 22 Pae. 288; Southern Nat. Bank v. 290, 13 L.R.A. 258. 
 
 Curtis, (Tex.) 36 S. W. 911. Missouri. — Young v. Lanznar, 133 
 
 1 Rousseau v. Marionneaux, 28 La. Mo. App. 130, 112 S. W. 17. 
 
 Ann. 293; Buckley v. Buckley, 18 N. New York. — Tenney v. Berger, 93 
 
 Y. S. 607; Miller v. Penniman, 110 N. Y. 524, 45 Am. Kep. 263; Pickard 
 
 Va. 780, 67 S. E. 516. v. Pickard, 83 Hun 338, 31. N. Y. S. 
 
 2 Ryan v. Martin, 18 Wis. 672. 987 ; Clark v. Nichols, 127 App. Div. 
 8 As to the justification for aban- 219, 11 N. Y. S. 66 ; Avery v. Jacob, 
 
 donment by an attorney, see supra, 59 Super. Ct. 585 mem., 15 N. Y. S. 
 
 § 139. 564. 
 
 4 Iowa. — Cullison v. Lindsay, 108 West Virginia. — Matheny f. Far- 
 la. 124, 78 N. W. 847. ley, 66 W. Va. 680, 66 S. E. 1060. 
 
 Kentucky. — Sweeney v. Kerr, 25 S. B Powers v. Manning, 154 Mass. 
 
 W. 273; Asher v. Beckner, 41 S. W. 370, 28 N. E. 290, 13 L.R.A. 258. 
 
 35, 19 Ky. L. Rep. 521. 6 See supra, % 139. 
 
 Louisiana. — Cooley v. Doherty, 5 T Craddock v. O'Brien, 104 Cal. 
 
 La. Ann. 163. 217, 37 Pac. 896. 
 
 Massachusetts. — Eliot v. Lawton, 7 
 
§ 454] 
 
 AMOUNT, ETC. OF COMPENSATIOIT. 
 
 801 
 
 § 454. Death of Attorney. — Although the relation of attor- 
 ney and client is terminated by the attorney's death,* his repre- 
 sentatives may recover the fair value of the services rendered by 
 him down to the time of his decease,' and such disbursements as he 
 may have made." And where a contract was made for the serv- 
 ices, at a stipulated compensation, of one of a firm of attorneys, 
 who died before the action was brought to trial, the client could 
 not refuse the services of the surviving partner without a tender 
 of a fair compensation for the services rendered in preparing for 
 the trial; and where the services were rendered by such partner 
 with due professional skill and diligence, he was entitled to the 
 entire fee.^' But no recovery can be had for services which were 
 rendered under a contract whereby payment was made contingent 
 on success, until the controversy has been determined.^^ It has 
 also been held that there can be no recovery where an attorney 
 dies before his contract of employment has been substantially per- 
 
 8 See supra, § 141. See also Clifton 
 V. Clark, 83 Miss. 446, 1 Ann. Cas. 
 396, 36 So. 251, 102 Am. St. Rep. 45§, 
 66 L.R.A. 821. 
 
 9 Kentucky. — Hardin v. McKitrick, 
 5 J. J. Marsh. 667 ; McGill v. MeGill, 
 2 Mete. 258; Baylor v. Morrison, 2 
 Bibb 103. 
 
 Maryland. — Gordon v. Miller, 14 
 Md. 204. 
 
 Massachusetts. — Tapley v. Coffin, 
 12 Gray 420. 
 
 Missouri. — Callahan v. Shotwell, 
 60 Mo. 398. 
 
 New Mexico. — Johnston v. Berna- 
 lillo County, 12 N. M. 237, 78 Pac. 
 43. 
 
 New York. — Seymour v. Cagger, 13 
 Hun 29; Boyd v. Daily, 85 App. Div. 
 581, 83 N. Y. S. 539, affirmed 176 N. 
 Y. 556, 013, 68 N. E. 1114. 
 
 South Carolina. — Clendinen v. 
 Black, 2 Bailey L. 488. 
 
 Tennessee. — Bills v. Polk, 4 Lea 
 494. 
 
 Attvs. at L. Vol. II.— 51. 
 
 Texas. — ^Landa v. Shook, 31 S. W. 
 57. 
 
 Virginia. — Nickels v. Kane, 82 Va. 
 309. 
 
 In an action by an administrator 
 to recover for legal services rendered 
 by his intestate, if deceased was em- 
 ployed as counsel only, to be called 
 when his services v/eve needed, and 
 if the suit ended by compromise in 
 the negotiation of which the serv- 
 ices of the attorney were not re- 
 quired, the client may be liable on 
 the contract for the full amount of 
 the compensation, though the intes- 
 tate died before the end of the suit. 
 Tewkesbury v. Beckwith, 46 111. App. 
 323. And see supra, § 406. 
 
 10 Badger v. Cellar, 41 App. Div. 
 599, 58 N. Y. S. 653. 
 
 11 Smith V. Hill, 13 Ark. 173. But 
 see Baxter v. Billings, 83 Fed. 790, 
 28 C. C. A. 85. 
 
 12 Badger v. Cellar, 41 App. Div. 
 599, 58 N. Y. S. 653. But see Sar- 
 gent V. McLcod, 155 App. Div. 21, 
 
802 AMOUNT, ETC. OF COMPENSATION. [§ 455 
 
 formed; *' and that the client may recover back unearned fees 
 which were paid to the attorney in advance." So, where an at- 
 torney took a conveyance of a tract of land to secure his fee for 
 services to be performed in certain cases, of which services his 
 death prevented more than a partial performance, it was held that 
 a bill in equity would lie against his estate to set aside the con- 
 veyance upon a tender of so much of the fee agreed upon as was 
 found to be really due.** 
 
 § 455. Death of Client. — It has been stated heretofore that 
 the authority of an attorney terminates on the death of his client, 
 and that he cannot act on behalf of the estate unless he has been 
 retained by those who represent it.** 
 
 In the absence of a special contract in regard to the duty of the 
 attorney to proceed with the business in which he was employed 
 until its final determination, he is entitled only to compensation 
 for the services rendered down to the time of the client's death ; " 
 and this is true although the right to compensation is contingent 
 on success.*' 
 
 But the attorney's right to compensation will not be affected 
 
 139 N. Y. S. 666, where a settlement bauve's Succession, 34 La. Ann. 1191; 
 
 due wholly to the attorney's services Vlllhauer v. Toledo, 5 Ohio Dee. 8. 
 
 was obtained shortly after his d(!ath. An attorney's power ceases on the 
 
 13 If a lawyer dies before he has death of his client, and a revivor of 
 commenced, or before he has prose- the suit afterwards in the name of 
 cuted to a decree or settlement, a the representatives without their au- 
 litigation which he has undertaken to thority is unwarranted. Campbell v. 
 conduct for a certain compensation, Kincaid, 3 T. B, Mon. (Ky.) 68. 
 his contract is at an end, and no one 17 In re Young, 3 Md. Ch. 461 ; 
 can recover the price stipulated, be- Avery v. Jacob, 59 Super. Ct. 585, 15 
 cause no substitute or successor can N. Y. S. 564. 
 
 supply to his client the use of the Defense of one accused of crime. — 
 
 learning, ability, and integrity for Agnew v. Walden, 84 Ala. 503, 4 So. 
 
 which be contracted. Baxter v. Bill- 672 ; Headley v. Good, 24 Tex. 232. 
 
 ings, 83 Fed. 790, 49 U. S. App. 767, 18 Bunn v. Pratlier, 21 111. 217; 
 
 28 C. C. A. 85. Villhauer v. Toledo, 5 Ohio Dee. 8. 
 
 14 Callahan v. Shotwell, 60 Mo. See also Johnston v. Eeilly, 68 N. J. 
 398; McCammon v. Peck, 6 Ohio Cir. Eq. 130, 59 Atl. 1044. 
 
 Dec. 504, 9 Ohio Cir. Ct. 589. Where a person employs attorneys 
 
 16 Callahan v. Shotwell, 60 Mo. 398. to recover damages for personal in- 
 16 See supra, % 140. See also La- juries, they to have half of any set- 
 
§ 455] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 803 
 
 by the death of his client where it has become vested by a sub- 
 stantial performance,*' or where it is coupled with an interest ; *" 
 such, for instance, as the accrual of a lien,* or the rendition of 
 valuable services.* 
 
 The fact that the client's death renders the services of the 
 
 tlement made, and dies before settle- 
 ment, the attorneys cannot, for their 
 services, reach, upon a quantum 
 meruit, a fund which the defendant 
 paid to the executors of the deceased 
 in settlement of the claim, as such 
 fund represents a new and diflferent 
 cause of action — the damages which 
 his estate suffered. In re Carrig, 36 
 Misc. 612, 73 N. Y. S. 1123. 
 
 An obligation to an attorney, on 
 condition he shall succeed in a suit 
 for the obligor, is not made absolute 
 by the death of the obligor prevent- 
 ing the success; nor after its revivor 
 in name of the heirs by the attorney 
 with their consent, by a compromise 
 made by the heirs, and the consequent 
 dismissal of the suit without his con- 
 sent. Campbell v. Kincaid, 3 T. B. 
 Mon. (Ky.) 68. 
 
 19 An administrator cannot annul 
 a valid contract made with an at- 
 torney under which services have 
 been faithfully rendered. Wylie v. 
 Coxe, 15 How, 415, 14 U. S. L. ed. 
 753. 
 
 In Price v. Hoeberle, 25 Mo. App. 
 201, it was said: "It thus appears 
 that the plaintiff had made with the 
 decedent, in her lifetime, a contract, 
 the performance of which he had en- 
 tered upon, and under which a sub- 
 stantial right had accrued to him. 
 At the time of her death that right 
 was in the nature of a vested right, 
 subject, of course, to be defeated by 
 the failure on his part to prosecute 
 
 to the end the duties which he had 
 engaged to perform under the eon- 
 tract. In this state of the case, his 
 contract was not determined by the 
 death of Mrs. Roberts [the plaintiff]. 
 Nor had the administrator any power 
 to determine it without cause, if he 
 had been so minded." 
 
 In Labauve's Succession, 34 La. 
 Ann. 1187, it was said that the death 
 of the client does not dissolve the 
 contract of employment, and that the 
 attorney can and should continue his 
 services to accomplish the purpose of 
 his employment, unless prohibited by 
 the legal representatives of the client, 
 and, where the attorney is not thus 
 forbidden to act, the death of the 
 client does not have the effect of 
 itself to make the fees of the attor- 
 ney exigible. 
 
 20 See supra, § 140. See also Vill- 
 hauer v. Toledo, 5 Ohio Dec. 8. 
 
 1 Wylie V. Coxe, 15 How. 415, 14 
 U. S. (L. ed.) 753. 
 
 2Grapel v. Hodges, 112 N. Y. 419, 
 20 N. E. 542, affirming 49 Hun 107, 
 1 N. Y. S. 823. 
 
 An attorney agreed with his client 
 to perform professional services for 
 which he was to be paid a fee on tlie 
 determination of the suit; before the 
 suit was determined the client died, 
 and it was held that the attorney 
 could not sue for his fee before the 
 determination of the suit. Triplett 
 V. Mockbeea, 5 J. J. Marsh. ( Ky . ) 
 219. 
 
804 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 456 
 
 attorney unnecessary, is no defense to an action on an obligation 
 given to the attorney to secure his fees.' 
 
 On Settlement by Client. 
 
 § 456. General Rule. — As a general rule the client has a 
 right at any time before judgment to compromise or dismiss his 
 action without his attorney's consent, and even over the objection 
 of his attorney ; * indeed, an agreement virhereby such right of set- 
 
 S Headley v. Good, 24 Tex. 232. See 
 also Agnew v. Walden, 84 Ala. 502, 
 4 So. 672, wherein it was said that 
 the retainer of an attorney in a crim- 
 inal case devolves upon him the duty 
 of rendering all the professional aid 
 and service necessary and proper in 
 the preparation and conduct of the 
 defense, according to the general 
 routine of such prosecutions, up to 
 the trial and final judgment, or other 
 termination of the case; and a note 
 being given on such retainer in a case 
 of homicide, the death of the maker 
 by mob violence, before trial, does not 
 constitute an entire failure of con- 
 sideration, though admissible evi- 
 dence as showing a partial failure. 
 
 4 United States. — Piatt v. Jerome, 
 19 How. 384, 15 U. S. (L. ed.) 623; 
 Swanston v. Morning Star Min. Co., 
 4 McCrary 241 ; Peterson v. Watson, 
 1 Blatchf. & H. 487, 19 Fed. Cas. No. 
 11,037 ; Brooks v. Snell, 1 Sprague 48, 
 4 Fed. Cas. No. 1,961; Purcel! v. 
 Lincoln, 1 Sprague 230, 20 Fed. Cas. 
 No. 11,471; Swanson v. Chicago, 
 etc., E. Co., 35 Fed. 638. 
 
 District of , Columbia. — Lament v. 
 Washington, etc., R. Co., 2 Mackey 
 502. 
 
 Georgia. — Gray v. Lawson, 36 Ga. 
 629; Hawkins V. Loyless, 39 Ga. 5; 
 Green v. Southern Express Co., 39 Ga. 
 20; Jones v. Morgan, 39 Ga. 310, 99 
 
 Am. Dec. 458 ; Harris v. Tison, 63 Ga. 
 629, 36 Am. Rep. 126. 
 
 Illinois. — Henchey v. Chicago, 41 
 111. 136. 
 
 Indiana. — Hanna v. Island Coal 
 Co., 5 Ind. App. 163, 31 N. E. 846. 
 
 Iowa. — Casar v. Sargeant, 7 la. 
 317; EUwood v. Wilson, 21 la. 523; 
 Cheshire v. Des Moines City R. Co., 
 153 la. 88, 133 N. W. 324. 
 
 Kentucky. — Wood v. Anders, 5 
 Bush 601; Kowe V. Fogle, 88 Ky. 105, 
 10 S. W. 426, 2 L.R.A. 708. 
 
 Maine. — Potter v. Mayo, 3 Me. 34, 
 14 Am. Dec. 211; Hobson v. Watson, 
 34 Me. 20, 56 Am. Dec. 632. 
 
 Massachusetts. — Getchell v. Clark, 
 5 Mass. 309; Simmons v. Almy, 103 
 Mass. 33. 
 
 Michigan. — Parker v. Blighton, 32 
 Mich. 266. Compare Millard v. Jor- 
 dan, 76 Mich. 131, 42 N. W. 1085. 
 
 Mississippi. — Mosely v. Jamison, 71 
 Miss. 456, 14 So. 529. 
 
 Missouri. — Reynolds v. Clark Coun- 
 ty, 162 Mo. 680, 63 S. W. 382; Alex- 
 ander V. Grand Ave. R. Co., 54 Mo. 
 App. 66. 
 
 Neiraska. — Lavender v. Atkins, 20 
 Neb. 206, 29 N. W. 467; Aspinwall 
 V. Sabin, 22 Neb. 73, 34 N. W. 72, 
 3 Am. St. Rep. 258. 
 
 New Hampshire.— -Young v. Dear- 
 born, 27 N. H. 327. 
 
 New Jersey. — Den v. Heister, 17 N. 
 
§ 456] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 805 
 
 tlement is forbidden is generally considered to be void as against 
 public policy.' Where a settlement has been so effected the at- 
 torney, in the absence of an express agreement for a fixed fee, can 
 only recover the reasonable value of the services rendered by him 
 down to the date of the settlement.* 
 
 But the mere fact that a claim sued for is paid directly to the 
 client does not deprive the attorney of his right to compensation ; ' 
 
 J. L. 438; Weller v. Jersey City, etc., 
 E. Co., 68 N. J. Eq. 659, 6 Ann. Cas. 
 442, 61 Atl. 459, affirming 66 N. J. 
 Eq. 11, 57 Atl. 730. 
 
 New York. — Sweet v. Bartlett, 4 
 Sandf. 661; Pearl v. Robitchek, 2 
 Daly 138; Sullivan v. O'Keefe, 53 
 How. Pr. 426; McDowell v. Second 
 Ave. R. Co., 4 Bosw. 670; Lee v. 
 Vacuum Oil Co., 126 N. Y. 579, 27 
 N. E. 1018; Diamond Soda Water 
 Mfg. Co. V. Hegeman, 74 App. Div. 
 430, 77 N. Y. S. 417; Publialiers' 
 Printing Co. v. Gillin Printing Co., 
 16 Misc. 558, 25 Civ. Pro. 327, 38 
 N. Y. S. 784. 
 
 North Dakota. — Paulson v. Lyson, 
 12 N. D. 354, 1 Ann. Cas. 245, 97 N. 
 W. 533. 
 
 South Carolina. — Miller v. Newell, 
 20 S. C. 123, 47 Am. Rep. 833. 
 
 South Dakota. — Grantz v. Dead- 
 wood Terra Min. Co., 17 S. D. 61, 95 
 N. W. 277. 
 
 Tennessee. — Johnson v. Story, 1 
 Lea 114; Yoakley v. Hawley, 5 Lea 
 673; Stephens v. Nashville, etc., R. 
 Co., 10 Lea 448; Sharpe v. Allen, 
 11 Lea 518; Covington v. Bass. 88 
 Tenn. 496, 12 S. W. 1033. Compare 
 Pleasants v. Kortrecht, 5 Heisk. 694. 
 
 Vermont. — Foot v. Tewkabury, 2 
 Vt. 97; Hutchinson v. Howard, 15 
 Vt. 544; Hooper v. Welch, 43 Vt. 
 169, 5 Am. Rep. 267. 
 
 Wisconsin. — Kusterer v. Beaver 
 Dam, 56 Wis. 471, 14 N. W. 617, 43 
 Am. Rep. 725. 
 
 6 See supra, §§ 390, 435. 
 
 It is universally considered that 
 the interests of justice are best sub- 
 served by allowing parties to litiga- 
 tion full liberty to compromise and 
 settle it at any time during its pen- 
 dency, without interference by third 
 persons, when the whole legal and 
 equitable title to the cause of action 
 rests in the plaintiff, and the sole 
 responsibility to answer to the plain- 
 tiff's claim rests upon the defendant. 
 Weller v. Jersey City, etc., R. Co., 08 
 N. J. Eq. 659, 6 Ann. Cas. 442, 61 
 Atl. 459, affirming 66 N. J. Eq. 11, 
 57 Atl. 730. 
 
 6 Colorado. — Webster v. Rhodes, 49 
 Colo. 203, 112 Pac. 324. 
 
 Illinois. — Pratt v. Kerns, 123 111. 
 App. 86. 
 
 Iowa. — Ellwood v. Wilson, 21 la. 
 523. 
 
 Kentucky, — Bowser v. Patrick, 65 
 S. W. 824, 23 Ky. L. Rep. 1578. 
 
 Maryland. — Western Union TeL 
 Co. V. Semmes, 73 Md. 9, 20 Atl. 127. 
 
 Michigan. — Millard v. Jordan, 7ft 
 Mich. 131, 42 N. W. 1085. 
 
 Montana. — Harris v. Root, 28 Mont. 
 159, 72 Pac. 429. 
 
 Neiv York. — Carey v. Gnant, 59 
 Barb. 574; Haire v. Hughes, 127 App. 
 Div. 530, 111 N. Y. S. 892, affirmed 
 197 N. Y. 514, 90 N. E. 1159. 
 
 7 Pierce v. Parker, 121 Mass. 403; 
 Whittle V. Tompkins, 94 S. C. 237, 
 77 S. E. 929. 
 
806 AMOUNT, ETC. OF OOMPENSATIOH-. [§ 457 
 
 and where an attorney is employed, for a certain sum, to transact 
 a particular piece of business, or conduct litigation, for his client, 
 he will be entitled to the sum agreed upon as well when the client 
 prevents performance by taking the matter into his own hands and 
 settling it, as when the attorney conducts the business to its termi- 
 nation.' Thus in a suit for the specific performance of a contract 
 to convey land, made in consideration of the personal services of 
 an attorney at law, it was held that the contract might be enforced 
 in full, though a compromise of the suit for which the attorney 
 was retained had been made by the client.* 
 
 It has also been held that a client who has placed a claim in 
 the hands of an attorney for collection, and who makes a settlement 
 of any kind of such claim with his debtor, without consulting his 
 attorney and obtaining his consent to the settlement, will be pre- 
 sumed to have collected the claim in full, or to have received such 
 a settlement as was as satisfactory to him as payment in full.'" 
 
 Under a California statute it has been held that while there 
 is an attorney of record, no stipulation as to the conduct or dis- 
 posal of the action should be entertained by the court unless the 
 same is signed or assented to by such attorney. This rule is con- 
 sidered, in that jurisdiction, to be not only indispensable to the 
 orderly conduct of litigation, but likewise a safeguard to the 
 client." 
 
 § 457. Rule where Compensation Is Dependent on Suc- 
 cess. — The right of a client to settle his legal controversies may 
 be exercised as well where he has retained counsel whose compen- 
 sation depends on the successful outcome of business undertaken,'^ 
 
 8 Coker v. Oliver, 4 Ga. App. 728, H Boca, etc., R. Co. v. Lassen Coun- 
 62 S. E. 483; Cordes v. Bailey, 39 ty Superior Ct., 150 Cal. 153, 88 Pac. 
 Ind. App. 83, 78 N. E. 678, 1060; 718. 
 
 Reynolds v. Clark County, 162 Mo. 18 United States. — ^Ronald v. Mu- 
 
 680, 63 S. W. 382; In re Fernbacher, tual Reserve Fund L. Assoc, 30 Fed. 
 
 18 Abb. N. Cas. (N. Y.) 1. 228; Such v. New York State Bank, 
 
 As to compensation generally, where 121 Fed. 202; DuBols v. New York, 
 
 performance is prevented by the 134 Fed. 570, 69 C. C. A. 112; Silver- 
 
 clifent, see supra §§ 450-455. man i'. Pennsylvania R. Co., 141 Fed. 
 
 9 Allcorn r. Butler, 9 Tex. 56. 382 ; New York Phonograph Co. i'. 
 
 10 Coker v. Oliver, 4 Ga. App. 728, Edison Phonograph Co., 150 Fed. 233; 
 62 S. E. 483. Carver v. U. S., 7 Ct. CI. 499. 
 
§■ 457] 
 
 AMOUNT, ETC. OF COMPENSATIOIir. 
 
 807 
 
 as where no such contingency exists ; " and it is immaterial that 
 the client contracted not to settle the controversy without the at- 
 torney's consent.** In some jurisdictions, however, this rule is 
 somewhat restricted; thus in California no stipulation as to the 
 conduct or disposal of a pending action will be entertained hy 
 the court unless the same is signed or assented to by the attorney 
 of record.** 
 
 As to the amount of compensation to which the attorney is en- 
 titled where the client thus effects a settlement, there is a conflict 
 of opinion. The general rule, however, is that there can be no 
 recovery under the contract,*' and that the attorney is confined 
 to the reasonable value of the services rendered by him down to 
 the time of settlement," which, as a rule, is based on the amount 
 
 Kentucky. — Henry v. Vance, 11] 
 Ky. 72, 63 S. W. 273; Koot v. Me- 
 Ilvaine, 56 S. W. 498, 22 Ky. L. Rep. 
 7; Joseph v. Lapp, 78 S. W. 1119, 25 
 Ky. L. Rep. 1875. 
 
 Minnesota. — Anderson v. Itasca 
 Lumber Co., 86 Minn. 480, 91 N. W. 
 12, 291. 
 
 Missouri. — Alexander v. Grand 
 Ave. R. Co., 54 Mo. App. 66; Ilurr 
 V. Metropolitan St. R. Co., 141 Mo. 
 App. 217, 124 S. W. 1057. 
 
 New York. — Wright v. Wright, 70 
 N. Y. 96; Coughlin v. New York 
 Cent., etc., R. Co., 71 N. Y. 443, 27 
 Am. Rep. 75, reversing 8 Hun 136; 
 In re Snyder, 190 N. Y. 66, 13 Ann. 
 Cas. 441, 82 N. E. 742, 123 Am. St. 
 Rep. 533, 14 L.R.A.(N.S.) 1101; 
 Bryant v. Brooklyn Heights R. Co., 
 64 App. Div. 542, 72 N. Y. S. 308; 
 Johnson v. Eavitch, 113 App. Div. 
 810, 99 N. Y. S. 1059; Haire v. 
 Hughes, 127 App. Div. 530, 111 N. Y. 
 S. 892. See also Matter of Goodale, 
 58 Misc. 182, 108 N. Y. S. 949. Com- 
 pare In re Fernbacher, 18 Abb. N. 
 Cas. 1. 
 
 Pennsylvania. — Britton v. Base, 23 
 Pittsb. Leg. J. N. S. 181. 
 
 18 See the preceding section. 
 
 14 See supra, §§ 390, 435. 
 
 15 Toy t\ Haskell, 128 Cal. 558, 61 
 Pac. 89, 79 Am. St. Rep. 70; Boca, 
 etc., R. Co. V. Lassen County Super- 
 ior Ct., 150 Cal. 153, 88 Pac. 718. 
 
 16 Indiana. — French v. Cunningham, 
 149 Ind. 632, 49 N. E. 797. 
 
 Kentucky. — Campbell v. Kincaid, 3 
 T. B. Mon. 68. 
 
 Maryland. — Semmes V. Western 
 Union Tel. Co., 73 Md. 9, 20 Atl. 127. 
 
 Montana. — Harris v. Root, 28 Mont. 
 159, 72 Pac. 429. 
 
 New York. — Mills v. Fox, 4 E. D. 
 Smith 220; Bittiner v. Gomprecht, 
 28 Misc. 218, 29 Civ. Proc. 300, 58 
 N. Y. S. 1011. 
 
 IT United States. — Ryan v. Phila- 
 delphia, etc.. Coal, etc., Co., 189 Fed. 
 253. 
 
 Illvnois. — Pratt v. Kerns, 123 111. 
 App. 86. 
 
 Maryland. — Semmes v. Western 
 Union Tel. Co., 73 Md. 9, 20 Atl. 1 27. 
 
 Missouri. — Duke v. Harjrer, 8 Mo. 
 App. 296. 
 
 Montana. — Harris v. Root, 28 Mont. 
 159, 72 Pac. 429. 
 
808 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 457 
 
 for •which the settlement was made.^' Thus where the attorney 
 contracts for a certain percentage of the recovery, he will be en- 
 titled to that percentage of the amount paid to his client in satis- 
 faction of the claim ; ** but where the defendant agrees to pay the 
 fees of the plaintiff's attorney, in addition to the sum paid in 
 
 Nevada. — Quint v. Ophir Silver 
 Min. Co., 4 Nev. 304. 
 
 New York. — In re Snyder, 190 N. 
 Y. 66, 13 Ann. Cas. 441, 82 N. E. 
 742, 123 Am. St. Eep. 533, 14 L.R.A. 
 (N.S.) 1101. 
 
 Amount Paid to Associate Counsel. 
 — Where an attorney, prosecuting an 
 action on a contingent fee basis, re- 
 tained associate counsel to assist him, 
 the question of the counsel's right 
 to payment is a matter resting be- 
 tween him and the attorney, and is 
 only material to the court, in de- 
 termining the amount the attorney 
 should receive out of a settlement, as 
 a guide to the value of the services 
 rendered by the attorney in the en- 
 tire action. Ryan v. Philadelphia & 
 Reading Coal & Iron Co., 189 Fed. 
 253. 
 
 18 Arkansas. — Bush v. Prescott, etc., 
 R. Co., 83 Ark. 210, 103 S. W. 176. 
 
 Colorado. — Bogert v. Adams, 8 
 Colo. App. 185, 45 Pac. 235. 
 
 Kentucky. — Schmitz v. South Cov- 
 ington, etc., St. R. Co., 131 Ky. 207, 
 18 Ann. Cas. 1114, 114 S. W. 1197, 
 22 L.R.A.(N.S.) 776. 
 
 Missouri. — Duke v. Harper, 8 Mo. 
 App. 296; Hurr v. Metropolitan St. 
 R. Co., 141 Mo. App. 217, 124 S. W. 
 1057. 
 
 Nevada. — Quint v. Ophir Silver 
 Min. Co., 4 Nev. 304. 
 
 New York. — Pilkington v. Brook- 
 lyn Heights R. Co., 49 App. Div. 22, 
 30 Civ. Pro. 276, 63 N. Y. S. 211. 
 
 Invalid Contract. — ^A contract for 
 
 a contingent fee which is invalid be- 
 cause of a stipulation forbidding set- 
 tlement which affects the entire con- 
 tract, does not bind either party as 
 to the amount of the fees fixed there- 
 in ; but the attorney may recover rea- 
 sonable compensation. In re Snyder, 
 190 N. Y. 66, 13 Ann. Cas. 441, 82 
 N. E. 742, 123 Am. St. Rep. 533, 14 
 L.R.A.(N.S.) 1101. See also supra, 
 § 438. 
 
 i^Ioica. — Ellwood v. Wilson, 21 
 la. 523; Rickel v. Chicago, etc., R. 
 Co., 112 la. 148, 83 N. W. 957. 
 
 Kentucky. — Schmitz v. South Cov- 
 ington, etc., St. R. Co., 131 Ky. 207, 
 18 Ann. Cas. 1114, 114 S. W. 1197, 
 22 L.R.A.(N.S.) 776. 
 
 Missouri. — Wait v. Atchison, T. & 
 S. F. R. Co., 204 Mo. 491, 103 S. W. 
 60; Curtis v. Metropolitan St. R. Co., 
 118 Mo. App. 341, 94 S. W. 762; 
 Boyle V. Metropolitan St. R. Co., 
 134 Mo. App. 71, 114 S. W. 558; 
 Hurr V. Metropolitan St. R. Co., 
 141 Mo. App. 217, 124 S. W. 
 1057; United Railways Co. v. O'Con- 
 nor, 153 Mo. App. 128, 132 S. W. 
 262. Compare Duke v. Harper, 8 
 Mo. App. 296; Cosgrove v. Burton, 
 104 Mo. App. 698, 78 S. W. 667. 
 
 New York. — ^Marsh v. Holbrook, 3 
 Abb. App. Dec. 176; Pilkington v. 
 Brooklyn Heights E. Co., 49 App. 
 Div. 22, 63 N. Y. S. 211; Neu v. 
 Brooklyn Heights R. Co., 113 App. 
 Div. 446, 99 N. Y. S. 290; Sullivan 
 V. McCann, 124 App Div. 126, 108 
 N. Y. S. 909. 
 
§ 457] AMOUNT, ETC. OF COMPENSATION. 809 
 
 settlement of the action, then the basis of reckoning is the sum 
 paid the client plus the attorney's fee; for instance, if the attor- 
 ney was to receive one third of the recovery, the sum paid to the 
 client would be deemed to be two thirds of the amount of the set- 
 tlement, and, therefore, the attorney would be entitled to an 
 amount equivalent to one half, and not one third, of the sum paid 
 to the client.*" 
 
 In some instances, however, the amount for which the client 
 settles is not the basis on which the attorney's compensation is com- 
 puted, especially where the value of the subject-matter of the liti- 
 gation may be ascertained with reasonable certainty ; ^ thus where 
 a client sold his interest in lands to his adversary for a nominal 
 sum, after he had entered into a contract with an attorney to con- 
 vey to him a certain part thereof if he succeeded in securing the 
 lands by litigation, it was held that the attorney was not bound by 
 the contract, but might recover the reasonable value of his serv- 
 ices.* And where the client takes property in settlement, or in 
 part settlement, of his claim, the attorney is entitled to have his 
 fee, when fixed at a percentage of the recovery, computed on the 
 
 20 Curtis V. Metropolitan St. R. the unperformed part of tlie labor, 
 Co., 125 Mo. App. 369, 102 S. W. though the fee as thus estimated may 
 62; Boyd V. G. W. Chase & Son Mer- exceed the amount paid by defendant 
 cantile Co., 135 Mo. App. 115, 115 to plaintiff. Bowser v. Patrick. 65 
 S. W. 1052. See also Crosby v. S. W. 824, 23 Ky. L. Rep. 1578. 
 Hatch, (la.) 135 N. W. 1079. But Where an attorney, having a con- 
 see Schmitz V. South Covington, etc., tract with his client for forty per cent 
 R. Co., 131 Ky. 207, 18 Ann. Cas. of the cause of action, served defend- 
 1114, 114 S. W. 1197, 22 L.R.A.{N.S.) ant with notice of such contract in 
 776 {apparently contra). accordance with the statute creating 
 
 1 Where the plaintiff compromises attorney's liens, defendant could not 
 with the defendant, and the defend- bind plaintiff by a settlement con- 
 ant, as consideration for the dismissal tract with the client, to which plain- 
 of the action, pays plaintiff a certain tiff was not a party, in which defend- 
 amount, and, in addition thereto, as- ant attempted to limit plaintiff's 
 sumes the payment of the fee of plain- fee to forty per cent of the amount 
 tiff's attorney and the costs of the paid the claimant. Boyd v. G. W. 
 action, the measure of defendant's Chase & Son Mercantile Co., 135 Mo. 
 liability to the attorney is the reason- App. 115, 115 S. W. 1052. 
 able fee of the attorney, allowed at 2 Duke v. Harper, 8 Mo. App. 296. 
 the contract price, abated by such See to the same effect Millard v. 
 sum as is reasonably represented by Jordan, 76 Mich. 131, 42 N. W. 1085. 
 
810 AMOUNT, ETC. OF COMPENSATIOII. [§ 458 
 
 fair value of the property, without regard to the price at which it 
 was taken.' So, in an action against a city on its bonds, brought 
 by an attorney whose fee was contingent upon the recovery of the 
 full amount, a settlement by the plaintiif for less than the face 
 value of the recovery was held to be a waiver of the right to insist 
 on the collection of the full amount of the bonds, as a prerequisite 
 to the attorney's right to the compensation provided for in the con- 
 tract.* And where, owing to the efforts of his attorney, the client 
 receives in settlement as much or more than he would have re- 
 ceived from the successful outcome of the litigation, the attorney 
 will be entitled to the price fixed by the contract.* In Texas it has 
 been held that where the attorney contracts with his client for a 
 contingent fee, and the client compromises the suit without the at- 
 torney's consent, the attorney will be entitled to recover the whole 
 amount of the fee in like manner as if the contingency, upon 
 which the payment of the fee was made to depend, had transpired.* 
 It has also been held in that jurisdiction that a contract whereby 
 an interest, equivalent to a certain percentage of the sum to be 
 recovered, is assigned to the attorney, authorizes him to maintain 
 the action in the name of his client,'' and, therefore, that a settle- 
 ment by the client can only be effective to the extent of the un- 
 assigned portion of the claim sued upon.' This, however, is but 
 a general rule. Cases may, and undoubtedly do, present them- 
 selves in which the attorney would not be permitted to control 
 the suit so as to prevent a compromise ; or, in other words, where 
 the attorney would not be permitted to continue the litigation to 
 the injury of the client.' 
 
 § 458. Fraudulent Settlements. — The right of litigants to 
 settle their controversies amicably, and without the interference 
 of counsel or other persons,'" does not justify them in perpetrat- 
 
 s Barcus v. Gates, 130 Fed. 364, o/- 6 Hill v. Cunningham, 25 Tex. 25. 
 
 iirmed 136 Fed. 184, 69 C. C. A. 200; T Texas Cent. R. Co. v. Andrews, 
 
 Coker v. Oliver, 4 Ga. App. 728, 62 28 Tex. Civ. App. 477, 67 S. W. 923. 
 
 S. E. 483. 8 Texas Cent. R. Co. w. Andrews, 
 
 iLarned v. Dubuque, 86 la. 166, 28 Tex. Civ. App. 477, 67 S. W. 023. 
 
 53 N. W. 105. 9 Hill v. Cunningham, 25 Tex. 25. 
 
 6 Webster v. Rhodes, 49 Colo. 203, 1" See the two preceding sections. 
 112 Pac. 324. 
 
§ 459] AMOUNT, ETC. OF COMPENSATION. 811 
 
 ing a fraud upon their attorneys.*^ The rule that courts look 
 with favor upon a compromise and settlement made by the par- 
 ties to a suit, to prevent the vexation and expense of further litiga- 
 tion, only applies where all the rights and interests of all of the 
 parties concerned, both legal and equitable, have been respected 
 and observed in good faith. ^* Where the parties negotiate a set- 
 tlement for the purpose of defrauding the attorney in the collec- 
 tion of his fees, the court will grant such relief as the circum- 
 stances of the case may warrant. The usual practice is to set aside 
 the dismissal, discontinuance, satisfaction, or other proceeding 
 whereby the action has been disposed of.^' In some jurisdictions 
 the court will permit the attorney to continue the cause, in the 
 name of his client, to determine and satisfy his claim. ^* 
 
 § 459. Settlement Provided for in Contract. — In some in- 
 stances the contract fixes the amount which the attorney is to re- 
 ceive in the event of a settlement, either with or without his con- 
 sent, and, in such cases, the fee so stipulated must, of course, be 
 paid on the settlement of the cause. ^^ But the payment of a cer- 
 tain sum merely for the purpose of terminating the litigation and 
 disposing of the annoyance caused by its prosecution, is not a 
 "settlement or recovery." '* So, where a creditor left a claim with 
 
 11 Potter V. Ajax Min. Co., 22 Utah set aside at the instance of plaintiff's 
 273, 61 Pac. 999. attorneys, employed by the assignor, 
 
 12 Weeks v. Wayne Circuit Judges, the beneficial, though not the nomi- 
 73 Mich. 256, 41 N. W. 269. See nal, plaintiff, to permit them to en- 
 also Read v. Dupper, 6 T. E. (Eng.) force their claim for services, where 
 361; Louisville, etc., R. Co. u. Wilson, their rights in collecting their com- 
 138 U. S. 507, 11 S. Ct. 405, 34 U. pensation from the assignor were not 
 S. (L. ed.) 1025. prejudiced. In re Goodale, 58 Misc. 
 
 13 Bush V. Prescott, etc., R. Co., 182, 108 N. Y. S. 949. 
 
 83 Ark. 210, 103 S. W. 176; Whit- 14 Potter v. Ajax Min. Co., 22 Utah 
 
 taker v. New York, etc., R. Co., 54 273, 61 Pac. 999. 
 
 Super. Ct. 8, 3 N. Y. St. Rep. 537; "Elliott v. Rubel, 132 111. 9, 23 
 
 Potter V. Ajax Min. Co., 22 Utah 273, N. E. 400, reversing 30 111. App. 62. 
 
 61 Pac. 999. See also Rickel v. Chicago, etc., R. 
 
 But where a. cause of action is as- Co., 112 la. 148, 83 N. W. 957. And 
 
 signed and then settled by the as- see supra, § 439. 
 
 signee, and the judgment in the ac- 18 Randel v. Vanderbilt, 75 App. 
 
 tion satisfied on settlement by the Div. 313, 78 N. Y. S. 124, affirmed 
 
 assignee, the satisfaction will not be 180 N. Y. 547, 73 N. E. 1131. 
 
812 AMOUNT, ETC. OF COMPENSATION. [§ 460 
 
 a lawyer for collection, and, among other things, agreed that, in 
 case he should himself "settle, compromise, or receive, or in any 
 way dispose of, the claim," the attorney should be allowed twenty- 
 five per cent, it was held that the mere taking by the creditor of 
 the debtor's note, without security or payment, did not entitle the 
 attorney to his commission." 
 
 § 460. Liability of Adverse Party. — The mere fact that the 
 client and his opponent adjust their diiferences without the con- 
 sent of counsel does not, as a general rule, impose any liability 
 on the adverse party for the payment of his opponent's counsel 
 fees.^' The defendant will be liable, however, where he agrees to 
 pay such fees as a part of the settlement; and such liability may 
 be enforced against him.^^ Such an agreement, though, will not 
 exonerate the client.^" In some jurisdictions the attorney may in- 
 tervene in the suit and continue it for his own protection,* but, in 
 such cases, it seems that the attorney must establish the original 
 cause of action.* In Arkansas it is provided by statute that in the 
 event of the compromise of a suit after the same has been filed, 
 where the fees of the attorney for the plaintiff or the defendant 
 are contingent, the attorney for the party receiving a consideration 
 for the compromise shall be entitled to sue both the plaintiff and 
 the defendant for a reasonable fee to be fixed by the court or jury 
 trying the case.' So, also, the adverse party will be liable for his 
 opponent's counsel fees where, under the local law, such counsel 
 
 n Mills V. Fox, 4 E. D. Smitli (N. 96 Tex. 295, 72 S. W. 166, affirming 
 
 Y.) 220. 30 Tex. Civ. App. 161, 70 S. W. 96; 
 
 18 Grossman v. Smith, 116 App. Texas Cent. R. Co. v. Andrews, 28 
 Div. 791, 102 N. Y. S. 18. Tex. Civ. App. 477, 67 S. W. 923; 
 
 19 Boyd V. G. W. Chase, etc., Mer- Potter v. Ajax Min. Co., 22 Utah 273, 
 cantile Co., 135 Mo. App. 115, 115 61 Pac. 999. 
 
 S. W. 1052; Pilkington v. Brooklyn 2 Swift v. Register, 97 Ga. 446, 25 
 
 Heights R. Co., 49 App. Div. 22, 63 S. E. 315; Merchants' Nat. Bank v. 
 
 N. Y. S. 211; Neu u. Brooklyn Heights Eustis, 8 Tex. Civ. App. 350, 28 S. 
 
 R. Co., 113 App. Div. 446, 99 N. Y. W. 227; Wilbur v. Lane, 53 Tex. Civ. 
 
 S. 290. App. 249, 115 S. W. 298 ; Lynch V. 
 
 aoSafford v. Carroll, 23 La. Ann. Munson, (Tex.) 59 S. W. 603. 
 
 382. SBush V. Prescott, etc., R. Co., 83 
 
 1 Galveston, etc., R. Co. v. Ginther, Ark. 210, 103 S. W. 176. 
 
§ 461] AMOUNT, ETC. OF COMPENSATION. 813 
 
 is entitled to a lien for his fees ; * this subject will be considered 
 more fully in connection with the general treatment of attorney's 
 liens.* 
 
 On Appointment to Serve Poor Persons. 
 
 § 461. In General. — Consideration has been given heretofore 
 to the power of the court to appoint counsel to serve indigent per- 
 sons/ and to the right of counsel to compensation therefor/ and 
 also to the right of attorneys to assist such persons in their litiga- 
 tion, without pay, irrespective of an appointment by the court.' 
 This section, therefore, will be confined to a discussion of the 
 amount of compensation allowed for the defense of indigent pris- 
 oners under statutory authority. Notwithstanding some early de- 
 cisions to the contrary,' it is now well settled that the justification 
 for allowing compensation for the defense of indigent prisoners 
 must be found in the local statutes ; the amount fixed by such stat- 
 utes, therefore, govern the courts in this respect.^" The usual pro- 
 vision, in such cases, is that the attorney shall be allowed a reason- 
 able fee to be fixed by the court, not exceeding a sum specified. 
 Such provisions have been declared to be constitutional.'^' An old 
 Alabama statute allows counsel one half of the compensation al- 
 lowed by law to solicitors.'^ The Colorado statute provides for an 
 allowance of a counsel fee not to exceed twenty dollars in all cases 
 where the defendant is indicted for a misdemeanor ; in all cases of 
 felony punished by imprisonment, the counsel fee is not to exceed 
 thirty dollars ; and in felonies punishable by death, the fee is not 
 
 4 Curtis V. Metropolitan St. R. Co., 5 See infra, §§ 640-645. 
 
 125 Mo. App. 369, 102 S. W. 62, fol- e See supra, §§ 86, 87. 
 
 Inunng Curtis v. Metropolitan St. K. 7 See supra, §§ 410-412. 
 
 Co., 118 Mo. App. 341, 94 S. W. 762; 8 See supra, § 393. 
 
 Boyle V. Metropolitan St. R. Co., 134 9 See supra, §§ 410, 411. 
 
 Mo. App. 71, 114 S. W. 558 ; Boyd W See the codes and general laws 
 
 V. G. W. Chase, etc.. Mercantile Co., of the various jurisdictions. 
 
 135 Mo. App. 115, 115 S. W. 1052; H Samuels v. Dubuque County, 13 
 
 Carter v. Chicago, etc., R. Co., 136 la. 536. 
 
 Mo. App. 719, 119 S. W. 35; Hurr 18 Commissioners' Ct. v. Turner, 45 
 
 V. Metropolitan St. R. Co., 141 Mo. Ala. 199. 
 
 App. 217, 124 S. W. 1057; Whittaker As to the fees allowed to solicitors, 
 
 V. New York, etc., R. Co., 54 Super, see Ala. Code (1907), § 6633. 
 Ct. 8, 3 N. Y. St. Rep. 537. 
 
814 AMOUNT, ETC. OF COMPENSATION. [§ 461 
 
 to exceed fifty dollars.^' In Indiana reasonable compensation is 
 allowed.^* The Iowa code provides that an attorney appointed by 
 the court to defend a person indicted for homicide, or any offense 
 the punishment of which may be life imprisonment, shall receive 
 a fee of twenty dollars per day for the time actually occupied in 
 court in the trial. If the prosecution be for any other felony, he 
 shall receive the sum of ten dollars in full for services.^* In 
 Maine, under statute, the court is authorized to allow reasonable 
 compensation to counsel for the defense of indigent prisoners.*® 
 Under the Michigan statute the compensation allowed in any one 
 case must not exceed the sum of fifty dollars.*'' And under the 
 Nebraska criminal code the coimsel fees must not exceed one hun- 
 dred dollars excepting in homicide cases.*' The Nevada statute 
 fixes the attorney's compensation at a sum not to exceed fifty dol- 
 lars." The New York Code of Criminal Procedure provides that 
 the court may allow counsel his personal and incidental expenses 
 and also reasonable compensation, not exceeding the sum of five 
 hundred dollars.^" In Ohio counsel are entitled to such compensa- 
 tion as the court may approve in cases of murder in the first or 
 second degree ; in a case of manslaughter, not exceeding one hun- 
 dred dollars, and in other cases of felony, not exceeding fifty dol- 
 lars.* Under the Wisconsin statute the court is authorized to allow 
 a reasonable compensation not to exceed fifteen dollars for each day 
 actually occupied in the trial or proceeding.* In some jurisdic- 
 tions, where several attorneys are appointed, each may be allowed 
 
 WMills's Ann. Stat. (1891), § 1026. 19 Act of March 5, 1875, p. 142 
 
 14 Miami County v. Mowbray, 160 (Cutting's Comp. Laws Ann. 1861- 
 
 Ind. 10, 66 N. E. 46. 1900), §§ 2455, 2456. See also Washoe 
 
 15 Iowa Ann. Code ( 1897 ) , § 5314. County v. Humboldt County, 14 Nev. 
 
 le Maine Rev. Stats. ( 1903 ) , p. 970. 123. 
 
 See also Anonymous, 76 Me. 207. 80 N. Y. Code Crim. Pro., § 308. 
 
 17 Michigan Comp. Laws (1897), § See also People v. Barone, 161 N. Y. 
 
 12,018. See also-Withey v. Osceola 475, 55 N. E. 1091; Matter of Mon- 
 
 Circuit Judge, 108 Mich. 168, 65 N. fort, 78 App. Div. 567, 79 N. Y. S. 
 
 W. 668. 765. 
 
 iSNeD. Comp. Stats. (1899), §7162. l Gen. Code Ohio (1910), § 13,618. 
 
 See also Boone County v. Armstrong, * Wis. Stats. (1898), § 4713. See 
 
 23 Neb. 764, 37 N. W. 626; Edmonds also Green Lake County v. Waupaca 
 
 V. State, 43 Neb. 742, 62 N. W. 199. County, 113 Wis. 425, 89 N. W. 549. 
 
§ 461] 
 
 AMOUJfT, ETC. OF COMPENSATION. 
 
 8U 
 
 a reasonable compensation for his services,* the total of which, 
 however, must not exceed the statutory maximum.* So, where sev- 
 eral defendants are indicted and tried jointly, it seems that but one 
 counsel fee will be allowed ; * but where the defendants are tried 
 Separately it has been held that a reasonable counsel fee may be 
 allowed for each trial,* even though the aggregate amount thereof 
 may exceed the statutory allowance.'' Where more than one trial 
 is necessary in any one case, it seems that the attorney may be al- 
 
 3 Gordon v. Dearborn County, 52 
 Ind. 322; People v. Heiselbetz, 26 
 Misc. 100, 5 N. Y. Ann. Cas. 165, 13 
 N. y. Crim. 470, 55 N. Y. S. 4. 
 
 * Anonymous, 76 Me. 207. 
 
 In People v. Heiselbetz, 30 App. 
 Div. 199, 13 N. Y. Crim. 223, 5J N. 
 Y. S. 685, it was said that "the real 
 question is whether the legislature 
 Intended to limit the aggregate 
 amount to be allowed to counsel ; and 
 I think it was the manifest intention 
 of that body to limit it to the sum 
 of five hundred dollars regardless of 
 the number of counsel assigned, and 
 also to allow the personal and in- 
 cidental expenses of the counsel. The 
 court may apportion the five hundred 
 dollars between counsel, for the 
 purpose of giving, not adequate com- 
 pensation, but reasonable compensa- 
 tion within the limitation of the stat- 
 ute. It certainly was not in the con- 
 templation of the legislature that an 
 unlimited number of counsel could 
 be assigned, and five hundred dollars 
 set apart for each of them." 
 
 5 Under the Colorado statute, which 
 provides that "but one fee shall be al- 
 lowed to counsel in any one case," it 
 was held that, although there were 
 three defendants, counsel was entitled 
 to but one fee. Washington County 
 V. Murray, 45 Colo. 115, 100 Pac. 
 588. 
 
 In Maine, it was held that where 
 two or more persons are jointly in- 
 dicted for a, capital offense and, by 
 order of the court, are tried jointly, 
 and, on application therefor, the court 
 assigns separate counsel for each, the 
 presiding judge has authority, under 
 the statute, to allow a sum not exceed- 
 ing one hundred and fifty dollars in 
 all for the services of counsel for any 
 one trial, including services upon ap- 
 peal or upon exceptions before the 
 law court. Anonymous, 76 Me. 207. 
 
 Compare Clark v. Osceola County, 
 107 la. 502, 78 N. W. 198, wherein it 
 was held that where an attorney was 
 appointed to defend two prisoners, 
 jointly indicted and tried, there were, 
 in legal effect, two appointments, and 
 that he was entitled to the statutory 
 fee for each. 
 
 6 Where two defendants, indicted 
 for murder in the first degree and ar- 
 raigned at the same time, demand 
 and receive separate trials, an at- 
 torney who has been assigned as 
 counsel for each, upon the request of 
 each for such aid, may be allowed by 
 the trial court compensation for his 
 services to each defendant. People 
 V. McElvaney, 36 Misc. 316, 10 N. Y. 
 Ann. Cas. 316, 73 N. Y. S. 639. 
 
 ''People V. McElvaney, 36 Misc. 
 316, 30 N. Y. Ann. Cas. 316, 73 N. Y. 
 S. 639. 
 
816 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 461 
 
 lowed the statutory compensation for each trial.' Under some 
 statutes counsel appointed to defend indigent prisoners are en- 
 titled to additional compensation for services rendered in an ap- 
 pellate court to which the case has been taken for review.' Under 
 the Wisconsin statute it has been held that an attorney appointed 
 by the court to defend indigent persons accused of crime, are not 
 entitled to compensation for the time spent out of court in prepa- 
 
 8 Tomlinson v. Monroe County, 134 
 la. 608, 112 N. W. 100 ; Washoe Coun- 
 ty V. Humboldt County, 34 Nev. 123; 
 People V. Montgomery, 101 App. Div. 
 338, 19 N. Y. Grim. 117, 91 N. Y. S. 
 765. 
 
 The statutory limitation of the 
 amount of counsel fees was intended 
 to apply only to a single trial or a 
 single appeal, and successive allow- 
 ances may be granted upon successive 
 trials by the court at different terms; 
 each allowance, however, must be 
 within the limitation prescribed by 
 the statute. People v. Montgomery, 
 101 App. Div. 338, 19 N. Y. Crim. 
 117, 91 N. Y. S. 765. 
 
 Under the Nevada statute which 
 provides for allowing an attorney ap- 
 pointed by the court to defend a 
 prisoner "such fee as the court may 
 fix, not to exceed fifty dollars,'' it 
 has been held that where the attorney, 
 after a trial of one ease in one county, 
 follows it to another county to which 
 it is removed, and then to the supreme 
 court, he is entitled to a separate fee, 
 not exceeding fifty dollars, for each 
 of the three trials. Washoe County 
 V. Humboldt County, 14 Nev. 123. 
 
 Compare People v. Coler, 61 App. 
 Div. 538, 10 N. Y. Ann. Gas. 105, 15 
 N. Y. Crim. 460, 70 N. Y. S. 639, 
 wherein it was held that where one 
 accused of murder pleaded not guilty, 
 and with a specification of insanity 
 
 thereto, counsel having been assigned 
 by the court to defend him, and com- 
 missioners were appointed, who de- 
 termined him insane, it was error to 
 grant counsel an allowance of five 
 hundred dollars, inasmuch- as the 
 proceeding of the commissioners 
 formed no part of the trial, which, 
 under sections 354, 355, must be by 
 a jury, and such proceedings did not 
 dispose of the action or indictment. 
 
 9 Baylies v. Polk County, 58 la. 
 357, 12 N. W. 311; State v. Behrens, 
 109 la. 58, 79 N. W. 387; Washoe 
 County V. Humboldt County, 14 Nev. 
 123; People v. Barone, 161 N. Y. 475, 
 14 N. Y. Crim. 378, 55 N. E. 1091; 
 People V. Ferraro, 162 N. Y. 545, 57 
 N. E. 167. 
 
 Under the Iowa statute which pro- 
 vides that an attorney, appointed to 
 defend a poor person, need not follow 
 the case into the supreme court, but, 
 if he does, he shall receive an en- 
 larged compensation on a scale cor- 
 responding to that fixed by the stat- 
 ute, it was held that an afftdavit to 
 the effect that the attorney "has not 
 directly or indirectly received any 
 compensation for such services from 
 any source" must be filed with the 
 court which made the appointment. 
 The claim, however, should be pre- 
 sented to the board of supervisors for 
 allowance. State v. Behrens, 109 la. 
 58, 79 N. W. 387. 
 
§§ 462, 463] AMOUNT, etc. of compensation. 817 
 
 ration for trial. ^^ In 'New York, however, the court may allow 
 counsel his personal and incidental expenses on a verified state- 
 ment thereof ; ^^ but the fees of associate counsel, retained by the 
 attorney assigned to the defense of an indigent prisoner to aid him 
 in gathering testimony, does not constitute "personal and inci- 
 dental expenses," within the meaning of the code.^* 
 
 Under Bankruptcy Act. 
 
 § 462. Allowance of Attorney Fees. — The bankruptcy act 
 provides that "the actual and necessary expenses incurred by of- 
 ficers in the administration of estates shall, except where other 
 provisions are made for their payment, be reported in detail, un- 
 der oath, and examined and approved or disapproved by the court. 
 If approved, they shall be paid or allowed out of the estates in 
 which they were incurred." '^ Under the provision counsel fees 
 may be allowed by the referee in bankruptcy,** even without no- 
 tice to creditors,*' for such services as are beneficial to the estate.*® 
 
 § 463. Fees of Bankrupt's Attorney. — An attorney is en- 
 titled to reasonable compensation for services rendered in aiding 
 the bankrupt to comply with the statutory requirements either in 
 voluntary *'' or involuntary proceedings.*' The statute does not, 
 
 ic Green Lake County v. Waupaca Rep. 527 ; In re Claussen, 164 Fed. 
 
 County, 113 Wis. 425, 89 N. W. 549. 300, 21 Am. Bankr. Rep. 34. 
 
 11 Matter of Monfort, 78 App. Div. " In re Terrill, 103 Fed. 781, 4 
 567, 79 N. Y. S. 765. Am. Bankr. Rep. 625. 
 
 12 Matter of Waldheimer, 84 App. *' I" r« Michel, 95 Fed. 803, 1 Am. 
 Div. 366, 17 N. Y. Grim. 381, 82 N. ^^^^t^- Eep- 665; In re Woodard, 95 
 Y g 9jg Fed. 955, 2 Am. Bankr. Rep. 692; In 
 
 "l3 Bankr. Act, § 62, 30 Stat. 562; 1 '^ ^'°^^' ^^ ^'"^^ ^^^' ^ ^•°- ^^"'"■ 
 
 Fed. Stat. Ann., p. 678 (Supp. 1912, ^^f ]^V \'\^''^^'^°''' ^''\'^^^- 
 ^ V i-i- ' 854^ 4 ^j^_ Bankr. Rep. 640; In re 
 
 p. 749). 
 
 14 In re Stotts, 93 Fed. 438, 1 Am. 
 
 Rosenthal, 120 Fed. 848, 9 Am. 
 Bankr. Rep. 626 ; In re Goldville Mfg. 
 Bankr. Rep. 641. ^^^ ^23 Fed. 579, 10 Am. Bankr. Rep. 
 
 15 In re Stotts, 93 Fed. 438, 1 Am. ggg. j^ ^e Payne, 151 Fed. 1018, 18 
 Bankr. Rep. 641. ^m Bankr. Rep. 192; Matter of 
 
 16 In re Zier, 142 Fed. 102, 73 C. C. Eschwege, 8 Am. Bankr. Rep. 282; 
 A. 326, 15 Am. Bankr. Rep. 646, o/- Matter of Stratemeyer, 14 Am. Bankr. 
 firming 127 Fed. 399, 11 Am. Bankr. Rep. 120. 
 
 Attys. at L. Vol. II.— 52. 
 
818 AMOUNT, ETC. OF COMPENSATION'. [§ 463 
 
 however, authorize the allowance of fees for all legal work which 
 the attorney may have done for the bankrupt, but only for that 
 which was required by the provisions of the law and the necessi- 
 ties of the proceeding." The statute relates only to services ren- 
 dered after the bankruptcy proceedings are instituted, to aid the 
 bankrupt in performing his duties required by such act, and not 
 to services rendered prior to bankruptcy in order to obtain a com- 
 position of creditors.^" And whether fees claimed by the attor- 
 ney for the bankrupt are allowable depends upon whether the serv- 
 ices rendered were for "cost of administration" — that is, whether 
 as rendered they conduced to the benefit of the estate and its 
 prompt administration.-' As a general rule, the services for which 
 the bankrupt's attorney may be paid out of the estate, as part of 
 the costs of administration, are the preparation and filing of the 
 petition and schedules, and the attendance upon the first meeting 
 of the creditors.* The court may, however, allow counsel fees for 
 services actually rendered in good faith for the purpose of impar- 
 tially administering the estate,' especially where such services are 
 beneficial ; thus where, after the discharge of the bankrupt and his 
 trustee, the attorney, as the result of considerable effort in exam- 
 ining records, etc., discovered additional assets amounting to a con- 
 siderable sum, it was held that he should be allowed a fair remu- 
 neration for the services so rendered.* It has been held, however, as 
 to claims of this character, that the attorney must submit his claim 
 for compensation as a general debt of the estate.^ Wo allowance 
 can be made from the estate to attorneys for services rendered in 
 the matter of the bankrupt's application for a discharge,* or for 
 services on a contested application to confirm a composition,' or for 
 
 19 In re Terrill, 103 Fed. 781, 4 Am. lln re Irwin, 17/ Fed. 284, 22 Am. 
 
 jSankr. Rep. 625; In re Payne, 151 Bankr. Rep. 165, modifying 174 Fed. 
 
 Fed. 1018, 18 Am. Bankr. Rep. 192. 642, 98 C. C. A. 396. 
 
 80 In re Stolp, 199 Fed. 488 ; In re 6 In re Beek, 92 Fed. 889, 1 Am. 
 
 Marble Products Co., 199 Fed. 668. Bankr. Rep. 535. 
 
 1 In re Duran Mercantile Co., 199 e In re Brundin, 112 Fed. 306, 7 
 Fed. 961. Am. Bankr. Rep. 296; In re Gillar- 
 
 2 Matter of Meis, 18 Am. Bankr. don, 187 Fed. 289; In re Duran Mer- 
 Eep. 104. cantile Co., 199 Fed. 961. 
 
 s In re Rosenthal, 120 Fed. 848, 9 '"> In re Fogarty, 187 Fed. 773, 109 
 
 Am. Bankr. Rep. 626. C. C. A. 621. 
 
§ 464] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 819 
 
 claiming the bankrupt's exemptions,' or for services which tend to 
 defeat and delay the proceedings,' as, for instance, in resisting the 
 adjudication.^" So, where the attorney has been paid before the 
 bankruptcy, whether by the bankrupt or another person, a suffi- 
 cient compensation for his services, no further sum will be allowed 
 out of the estate.** 
 
 § 464. Fees of Attorneys for Trustee and Receiver. — 
 
 A trustee of a bankrupt, though an attorney, is not bound to per- 
 form legal services, and even if he does he cannot have compensa- 
 tion therefor from the estate.*^ But where he requires legal as- 
 sistance he may employ counsel, and the reasonable fees of such 
 counsel may be allowed as part of the cost of administering the es- 
 tate.*' Thus the fees of counsel employed by the trustee to recover 
 assets of the estate, constitutes a part of the trustee's expenses; 
 
 sin re Castleberry, 143 Fed. 1018, 
 16 Am. Bankr. Rep. 159; In re 
 O'Hara, 166 Fed. 384, 21 Am. Bankr. 
 Rep. 508. 
 
 9 In re Woodard, 95 Fed. 955, 2 Am. 
 Bankr. Rep. 692 ; In re Zicr, 142 Fed. 
 102, 73 C. C. A. 326. 
 
 10 Randolph v. Scruggs, 190 U. S. 
 533, 23 S. Ct. 710, 47 U. S. (L. ed.) 
 1165, 10 Am. Bankr. Rep. 1. 
 
 "In re O'Connell, 98 Fed. 83, 3 
 Am. Bankr. Rep. 422; In re Smith, 
 108 Fed. 39, 5 Am. Bankr. Rep. 559. 
 
 12 In re George Halbert Co., 134 
 Fed. 236, 67 C. C. A. 18, 13 Am. 
 Bankr. Rep. 399; In re McKenna, 
 137 Fed. 611, 15 Am. Bankr. Rep. 4; 
 In re Felaon, 139 Fed. 275, 15 Am. 
 Bankr. Rep. 185. See also In re 
 Evans, 116 Fed. 909, 8 Am. Bankr. 
 Rep. 730. 
 
 18 In re Stotts, 93 Fed. 438, 1 Am. 
 Bankr. Rep. 641; In re Burrus, 97 
 Fed. 926, 3 Am. Bankr. Rep. 296; In 
 re Rude, 101 Fed. 805, 4 Am. Bankr. 
 Rep. 319; In re Arnett, 112 Fed. 770, 
 7 Am. Bankr. Rep. 522; In re Lang, 
 
 127 Fed. 755, 11 Am. Bankr. Rep. 
 794; In re Byerly, 128 Fed. 637, 12 
 Am. Bankr. Rep. 186; In re Talton, 
 137 Fed. 178, 14 Am. Bankr. Rep. 
 617; In re McKenna, 137 Fed. 611, 15 
 Am. Bankr. Rep. 4; Davidson v. 
 Friedman, 140 Fed. 853, 72 C. C. A. 
 553; In re Dimm, 146 Fed. 402, 17 
 Am. Bankr. Rep. 119; Page v. Rogers, 
 149 Fed. 194, 79 C. C. A. 153, 17 Am. 
 Bankr. Rep. 854; In re Mitchell, 1 
 Am. Bankr. Rep. 687; In re Smith, 2 
 Am. Bankr. Rep. 648; In re Knight, 
 5 Am. Bankr. Rep. 560 note; Matter 
 of Burke, 6 Am. Bankr. Rep. 502; 
 Keyes v. McKirrow, 9 Am. Bankr. 
 Rep. 322; Matter of Niman, 14 Am. 
 Bankr. Rep. 515. 
 
 While the fact that an attorney 
 had acted for the bankrupt may effect 
 the propriety of his employment to 
 act for the trustee, it does not deprive 
 him of the right to compensation for 
 services after he has been so em- 
 ployed. In re Dimm, 146 Fed. 402, 17 
 Am. Bankr. Rep. 119. 
 
820 
 
 AMOiriTT, ETC. OF COMPENSATION. 
 
 [§ 465 
 
 and, as such, a part of the costs and expenses of administration.^* 
 But where the trustee's attorney assumes a position antagonistic 
 to the creditors, as, for instance, where he acts in favor of the bank- 
 rupt, he will be allowed only a nominal sum.''' A receiver in bank- 
 ruptcy is entitled to be reimbursed for the fees of counsel only to 
 the extent that the services rendered by such counsel were for the 
 direct benefit of the estate.'^ Ordinarily, the duties of a statutory 
 receiver for an- alleged bankrupt neither require nor justify the 
 employment of an attorney; and hence, a claim for the services of 
 an attorney so employed is not chargeable per se against the estate 
 where it is predicated alone on the fact of employment and serv- 
 ice rendered.'' 
 
 § 465. Fees of Attorneys for Creditors. ^ — The statute al- 
 lows "one reasonable attorney's fee, for the professional services 
 actually rendered, irrespective of the number of attorneys em- 
 ployed, to the petitioning creditors in involuntary cases." " The 
 
 1* Davidson v. Friedman, 140 Fed. 
 853, 72 C. C. A. 553; Page v. Rogers, 
 149 Fed. 194, 79 C. C. A. 153, 17 Am. 
 Bankr. Rep. 854. 
 
 Claimant Cannot be Compelled to 
 Pay Trustee's Attorney. — Where, on 
 re-examination of the allowance of 
 certain claims against a bankrupt's 
 estate, it was found on sufficient evi- 
 dence that the claims were unsustain- 
 able, it was held that while the ref- 
 eree properly required the claimant 
 to pay the costs of the hearing, he 
 was not authorized to require that the 
 claimant also pay an attorney's fee 
 to the trustee's attorney. In re Rome, 
 162 Fed. 971, 19 Am. Bankr. Rep. 
 820. 
 
 15 In re Fidler, 172 Fed. 632, 23 Am. 
 Bankr. Rep. 16. 
 
 18 In re Zier, 142 Fed. 102, 73 C. 
 C. A. 326, 15 Am. Bankr. Rep. 646; 
 In re Oppenheimer, 146 Fed. 140, 17 
 
 Am. Bankr. Rep. 59; In re Ketterer 
 Mfg. Co., 155 Fed. 987, 19 Am. Bankr. 
 Rep. 646; In re Ketterer Mfg. Co., 
 156 Fed. 719; In re T. E. Hill Co., 
 159 Fed. 73, 86 C. C. A. 263, 20 Am. 
 Bankr. Rep. 73. 
 
 Services Not Beneficial. — An at- 
 torney is not entitled to an allowance 
 from the estate in bankruptcy on ac- 
 count of services rendered to a state 
 receiver where, as a whole, his ser- 
 vices cost the estate and general cred- 
 itors several times its amount, in in- 
 creased expenses of administration. 
 In re Zier, 127 Fed. 399, 11 Am. 
 Bankr. Rep. 527. See also Frank v. 
 Dickey, 139 Fed. 744, 71 C. C. A. 562, 
 15 Am. Bankr. Rep. 155. 
 
 " In re T. E. Hill Co., 159 Fed. 73, 
 86 C. C. A. 263, 20 Am. Bankr. Rep. 
 73. 
 
 "Bankr. Act, § 64b (3); 30 Stat. 
 L. 563, 1 Fed. Stat. Ann. 683 (Supp. 
 
§ 465] AMOUNT, ETC. OF COMPENSATION. 821 
 
 "one attorney's fee" thus allowed should be equitably divided be- 
 tween attorneys representing two petitions which are filed and con- 
 solidated by order of the court. ^* But the unnecessary filing of a 
 second petition on behalf of creditors who did not join in the first 
 one, does not entitle the attorney for such creditors to a fee for his 
 services ; and this is true even though the first petition is demur- 
 rable, where it is subsequently amended and an adjudication made 
 thereon.^" Nor are attorneys who filed a petition in involuntary 
 bankruptcy for creditors, which was defective and insufficient to 
 warrant an adjudication, which was made on a second petition by 
 other creditors, entitled to an allowance of fees from the estate.* 
 The statute also provides that "where property of the bankrupt, 
 transferred or concealed by him either before or after the filing of 
 the petition, shall have been recovered for the benefit of the estate 
 of the bankrupt by the efforts and at the expense of one or more 
 creditors, the reasonable expenses of such recovery" shall be en- 
 titled to payment out of the bankrupt estate.^ The theory upon 
 which the bankruptcy law authorizes the allowance of fees to the 
 attorneys for petitioning creditors is that such creditors are acting 
 for the joint benefit of themselves and all other unsecured credit- 
 ors who will, by reason of their efforts, share equally with them in 
 the unincumbered assets of the bankrupt.* Thus where one of the 
 creditors of a bankrupt, by his attorney, objects to the allowance of 
 a claim filed by another creditor, the trustee declining to interfere, 
 and upon a contest and trial secures its rejection, thereby saving a 
 
 3912, p. 772. See also In re Young, grounds upon which it could legally 
 142 Fed. 893, 16 Am. Bankr. Rep. be adjudged a bankrupt, and the ad- 
 106. judication was made on grounds al- 
 ls In re McCracken, 129 Fed. 621, leged in the other, the attorneys in 
 12 Am. Bankr. Rep. 95; In re Coney the subsequent petition are entitled 
 Island Lumber Co., 199 Fed. 197. to the fee allowed for filing the peti- 
 '20 Frank v. Dickey, 139 Fed. 744, tion and procuring the adjudication. 
 71 C. C. A. 562, 15 Am. Bankr. Rep. In re Southern Steel Co., 169 Fed. 702, 
 155. 22 Am. Bankr. Rep. 476. 
 
 lln re Fischer, 175 Fed. 531, 99 C. 2 Bankr. Act, § 64b (2), 32 Stat. L. 
 
 C. A. 153, 23 Am. Bankr. Rep. 427. 800, Fed. Stat. Ann. Supp. 1912, p. 
 
 Thus where two petitions in invol- 771. See also In re Hersey, 171 Fed. 
 
 untary bankruptcy were filed by dif- 1004, 22 Am. Bankr. Rep. 863. And 
 
 ferent creditors against a corpora- see infra, § 467. 
 
 tion, the first of which did not present 8 In re Gillaspie, 190 Fed. 88. 
 
822 AMOUNT, ETC. OF COMPENSATION. [§ 465 
 
 considerable sum for distribution among the creditors generally, 
 the attorney for such contesting creditor may be allowed a fee to 
 be paid out of the estate.* Where the property of a bankrupt was 
 turned over to voluntary trustees as agents for creditors in an at- 
 tempt to administer the assets without resort to bankruptcy pro- 
 ceedings, such trustees, in accounting to the trustee in bankruptcy, 
 were entitled to have their attorney's fees allowed, if proper in 
 amount.' The statute does not allow, as a claim against the estate, 
 compensation for the services of attorneys employed by creditors 
 in their own interest.^ Attorneys so employed must look to their 
 clients, not to the bankrupt estate, or to the court, for compensa- 
 tion.'' Neither under the statutory provisions, nor its general 
 equity powers, has the court authority to make an allowance for 
 attorney's services rendered in securing the rejection of improper 
 claims, setting aside alleged priorities, or secviring the appoint- 
 ment of a proper trustee.' But where the defendant, in an action 
 by a trustee in bankruptcy, answered that he had in his hands a 
 sum belonging to the bankrupt, but which was claimed as assignee 
 by his wife, who thereupon intervened, and the only issue tried 
 was between her and the plaintiff, it was held that the defendant, 
 who occupied the position of a mere stakeholder, was entitled to 
 the allowance of a reasonable attorney's fee.® In some instances, 
 however, creditors attorneys' fees have been allowed indirectly; 
 thus where an obligation, by which a bankrupt's indebtedness is 
 evidenced, contains a stipulation for an attorney's fee for the col- 
 
 4 In re Little Eiver Lumber Co., 863; In re Allert, 173 Fed. 691, 23 
 101 Fed. 558, 3 Am. Bankr. Rep. 682. Am. Bankr. Rep. 101; In re Stewart, 
 
 5 In re Marble Products Co., 199 178 Fed. 463; Matter of Fletcher, 10 
 Fed. 668. Am. Bankr. Rep. 398. 
 
 8 In re Silverman, 97 Fed. 325, 3 7 In re Evans, 116 Fed. 909, 8 Am. 
 
 Am. Bankr. Rep. 227; In re Smith, Bankr. Rep. 730. 
 
 108 Fed. 39, 5 Am. Bankr. Rep. 559; Sin re Coventry Evans Furniture 
 
 In re Watkinson, 130 Fed. 218, 12 Co., 171 Fed. 673, 22 Am. Bankr. Rep. 
 
 Am. Bankr. Rep. 370; In re Worth, 623; In re Stewart, 178 Fed. 463; In 
 
 130 Fed. 927, 12 Am. Bankr. Rep. re Madina Quarry Co., 191 Fed. 815, 
 
 566; In re Felson, 139 Fed. 275, 15 reversing 182 Fed. 508, 112 C. C. A. 
 
 Am. Bankr. Rep. 185 ; In re Coventry 329. 
 
 Evans Furniture Co., 171 Fed. 673, 22 9 Caten v. Bagle Bldg., etc., Assoc, 
 
 Am. Bankr. Rep. 623; In re Hersey, 177 Fed. 996, 23 Am. Bankr. Rep. 130. 
 171 Fed. 1004, 22 Am. Bankr. Rep. 
 
§ 466] AMOUNT, ETC. OF COMPENSATIOH". 823 
 
 lection thereof, and the claim has been placed with an attorney for 
 collection prior to bankruptcy, and collection proceedings were ac- 
 tually instituted, so that the attorney's fee was a fixed liability at 
 the time of the filing of the petition in bankruptcy, such fee con- 
 stitutes a provable debt against the estate of the bankrupt, and, as 
 such, is recoverable." Where, however, the obligation has not been 
 given to an attorney to collect, or no effort has been made to realize 
 thereon such as would authorize the collection of the fee as part 
 of the claim, the stipulated fee, in such cases, has not become 
 such a fixed liability as to make it available as a provable debt 
 in bankruptcy." Where judgments were entered against a 
 bankrupt by confession, without suit, and included an allowance 
 for attorney's fees, it was held that the bankrupt was entitled at 
 the first opportunity, when such judgments were presented for 
 allowance as claims against his estate, to object to the allowance 
 of the attorney's fees because no testimony was offered as to the 
 value of the services or the amount of the commissions which 
 should be allowed, and his trustee in bankruptcy was entitled to 
 raise the same objection.** 
 
 § 466. Fees Must Be Reasonable in All Cases. — Allow- 
 ances to attorneys for services in bankruptcy cases must be made 
 
 10 Merchants' Bank v. Thomas, 121 144 Fed. 314, 16 Am. Bankr. Rep. 
 Fed. 306, 57 C. C. A. 374, 10 Am. 454; McCabe c. Patton, 174 Fed. 217, 
 Bankr. Rep. 299; In re Edens Co., 98 C. C. A. 225, 23 Am. Bankr. Rep. 
 151 Fed. 940, 18 Am. Bankr. Rep. 335; In re V. & M. Lumber Co., 182 
 643; In re V. & M. Lumber Co., 182 Fed. 231. 
 
 Fed. 231; In re Torchia, 185 Fed. But in In re Ferreri, 188 Fed. 675, 
 
 576. See also In re Wendel, 152 Fed. it was held that where a mortgage 
 
 672, 18 Am. Bankr. Rep. 665; In re executed by a bankrupt provided for 
 
 Ferreri, 188 Fed. 675. the payment of the attorney's fees of 
 
 11 In re Roche, 301 Fed. 956, 42 C. the mortgagee in case he was re- 
 C. A. 115, 4 Am. Bankr. Rep. 369; In quired to employ counsel, it was held 
 re Garlington, 115 Fed. 999, 8 Am. that the mortgagee was entitled to an 
 Bankr. Rep. 602; In re Keeton, 126 allowance for a. reasonable attorney's 
 Fed. 426, 11 Am. Bankr. Rep. 367; In fee for services required in proving 
 re Keeton, 126 Fed. 429, 11 Am. his claim and lien against the bank- 
 Bankr. Rep. 370; In re Gebhard, 140 rupt's estate. 
 
 Fed. 571, 15 Am. Bankr. Rep. 381; 13 In re Torchia, 185 Fed. 576. 
 
 In re T. H. Thompson Milling Co., 
 
824 AMOUNT, ETC. OF COMPENSATION. [§ 467 
 
 in view of the clearly disclosed policy of the law to reduce the ex- 
 pense of administering bankrupt estates to the minimum. ^^ The 
 amount of such allowances is largely within the judicial discretion 
 of the bankruptcy court," subject to revision for abuse." The ref- 
 eree in bankruptcy is entitled, and it is his duty, to reduce the 
 amount named for attorney fees if he believes it to be too high.'° 
 While the amount should never be lavish or extravagant, and 
 should always be rigidly scrutinized, it should be reasonable and 
 adequate.^'' It is recognized in bankruptcy, as elsewhere, that it 
 would be unwise, both for creditors and bankrupts, to make the 
 compensation so parsimonious that attorneys of standing and ex- 
 perience would be reluctant to act. The amount of the estate, the 
 complexity of the bankrupt's affairs, the time reasonably devoted 
 to the service, and the standing and experience of counsel, are all 
 proper elements to be taken into consideration in estimating the 
 reasonableness of the fees ; '' and where the services have been im- 
 portant and beneficial to the estate, a liberal compensation should 
 be allowed." 
 
 § 467. Priority Rights. — The debts to which the bankruptcy 
 act accords priority of payment are (1) the "one reasonable attor- 
 ney's fee" ^^ allowed to the attorneys for petitioning creditors in 
 involuntary proceedings,' and to the bankrupt in involuntary cases 
 while performing the duties prescribed by the act, and, in volun- 
 tary cases, as the court may allow; ^ and (2) the reasonable ex- 
 penses of creditors in recovering property for the benefit of the 
 
 13 In re Lang, 127 Fed. 755, 11 Am. 18 In re Christiansen, 175 Fed. 867, 
 Bankr. Eep. 794; In re Christiansen, 23 Am. Bankr. Rep. 710. 
 
 175 Fed. 867, 23 Am. Bankr. Rep. 710. W Matter of Berkowitz, 22 Am. 
 
 14 In re Carr, 116 Fed. 556, 8 Am. Bankr. Rep. 236. 
 
 Bankr. Rep. 635; In re Standard Ful- 20 Bankr. Act, § 64b (3) , 30 Stat. L. 
 
 ler's Earth Co., 186 Fed. 578. 563, 1 Fed. Stat. Ann. 683 (Supp. 
 
 15 In re Christianson, 175 Fed. 867, 1912, p. 772). 
 
 23 Am. Banlcr. Rep. 710. 1 See supra, § 465. 
 
 16 In re Carr, 116 Fed. 556, 8 Am. 8 See supra, § 463. See also In re 
 Bankr. Rep. 635; In re Ferreri, 188 Kross, 96 Fed. 8] 6, 3 Am. Bankr. 
 Fed. 675. Rep. 187; Matter of Hitchcocic, 17 
 
 "In re Sully, 142 Fed. 895, 15 Am. Am. Bankr. Rep. 664. 
 Bankr. Rep. 304; Matter of Berko- 
 witz, 22 Am. Bankr. Rep. 236. 
 
§ 468] AMOUNT, ETC. OF COMPENSATIOIf, 825 
 
 estate,* including the fees of counsel whose services were necessary 
 for that purpose.* Attorney's fees earned otherwise are not en- 
 titled to priority under the bankruptcy act ; * but it will be observed 
 that the fees of the attorneys for the trustee and the receiver, being 
 allowed as a part of the administrative expenses of these officers, 
 are, in effect, also accorded priority rights.® Such claims for at- 
 torney's fees as are entitled to priority, rank next after the wages 
 of laborers, and take precedence, subject to tax claims, of all liens 
 on the funds in the hands of the court for distribution.'' 
 
 § 468. Re-examination of Fees Paid in Contemplation of 
 Bankruptcy. — The bankruptcy act provides : "If a debtor shall, 
 directly or indirectly, in contemplation of the filing of a petition 
 by or against him, pay money or transfer property to an attorney 
 and counselor at law, solicitor in equity, or proctor in admiralty 
 for services to be rendered, the transaction shall be re-examined 
 by the court on petition of the trustee or any creditor, and shall 
 only be held valid to the extent of a reasonable amount to be de- 
 termined by the court, and the excess may be recovered by the 
 trustee for the benefit of the estate." ' This section recognizes the 
 right of a debtor to have the aid and advice of counsel, and, in 
 
 SBankr. Act, § 64b (2), 32 Stat. L. e See supra, § 464. 
 
 800, Fed. Stat. Ann. Supp. 1912, Tin re Erie Lumber Co., 150 Fed. 
 
 p. 771. 817, 17 Am. Bankr. Eep. 689. 
 
 4Seem/ra, § 465. Time of Presenting Claim.— The 
 
 5 In re Woodard, 95 Fed. 955, 2 claim of the bankrupt's attorney for 
 
 Am. Bankr. Rep. 692; In re Lewin, a fee, payable as part of the costs of 
 
 103 Fed. 850, 4 Am. Bankr. Eep. 632; administration, does not lose its right 
 
 In re Carr, 117 Fed. 574, 9 Am. to priority of payment out of the 
 
 Bankr. Rep. 58; In re Connell, 120 funds on hand at the time it is pre- 
 
 Fed. 846, 9 Am. Bankr. Rep. 474; In sented, merely because it was not 
 
 re Rosenthal, 120 Fed. 848, 9 Am. presented until after the declaration 
 
 Bankr. Rep. 626; Frank v. Dickey, and payment of a first dividend. In 
 
 139 Fed. 744, 71 C. C. A. 562, 15 Am. re Scott, 96 Fed. 607, 2 Am. Bankr. 
 
 Bankr. Rep. 155; In re Zier, 142 Fed. Rep. 324. 
 
 102, 73 C. C. A. 326, affirming 127 SBankr. Act, § 60d; 30 Stat. L. 
 
 Fed. 399, 11 Am. Bankr. Rep. 527; In 562; 1 Fed. Stat. Ann. p. 677 (Supp. 
 
 re O'Hara, 166 Fed. 384, 21 Am. 1912, p. 747). 
 Bankr. Rep. 508; In re Crave, etc., 
 Co., 183 Fed. 769, 106 C. C. A. 180. 
 
826 AMOUNT, ETC. OF COMPENSATION. [§ 468 
 
 corLtemplation of bankruptcy proceedings whicli shall strip him of 
 his property, to make provision for the reasonable compensation 
 of such counsel ; it also recognizes the temptation of a failing debt- 
 or to deal too liberally with his property in employing counsel to 
 protect him in the event of financial reverses and probable failure ; 
 and, in view of these circumstances, makes provision that the bank- 
 ruptcy court administering the estate may, if the trustee or any 
 creditor question the transaction, re-examine it with a view to a 
 determination of its reasonableness.' The statute does not, how- 
 ever, prevent the debtor from paying his attorney a fair remuner- 
 ation for his services, and it is immaterial whether the payment 
 is made at, or after, the time of entering into the professional en- 
 gagement.^" A payment or transfer to counsel is valid to the ex- 
 tent that it is reasonable.*^ The statutory provision is limited, 
 however, to the allowance of reasonable compensation to attorneys 
 for services rendered to the bankrupt prior to and in contempla- 
 tion of the commencement of the bankruptcy proceedings ; it does 
 not cover services rendered in resisting the creditor's petition for 
 an adjudication of bankruptcy.*^ So, a payment made by a bank- 
 rupt to his attorney immediately prior to bankruptcy, for services 
 previously rendered, in so far as the question of its being preferen- 
 tial is concerned, stands upon the same ground as a payment to 
 any other creditor.** The jurisdiction of the bankruptcy court 
 extends to a case where the counsel concerned are nonresidents 
 of the state and district, and even where the transaction occurred, 
 and notice of the proceeding was served, outside the district." A 
 
 9 In re Wood, 230 U. S. 246, 28 S. 10 In re Cummins, 196 Fed. 224. 
 
 Ct. 621, 52 U. S. (L. ed.) 1046, 20 See also Maybin v. Raymond, 15 Nat. 
 
 Am. Bankr. Rep. 1. And see to the Bankr. Reg. 353, 16 Fed. Cas. No. 
 
 same effect In re Kross, 96 Fed. 816, 9,338, and Reed v. Mellor, 5 Mo. App. 
 
 3 Am. Bankr. Rep. 187; In re Lewin, 567, decided under earlier statutes. 
 
 103 Fed. 850, 4 Am. Bankr. Rep. 632; . n In re Wood, 210 U. S. 246, 28 S. 
 
 Pratt V. Bothe, 130 Fed. 670, 65 C. C. Ct. 621, 52 U. S. (L. ed.) 1036, 20 
 
 A. 48, 12 Am. Bankr. Rep. 529; In re Am. Bankr. Rep. 1. 
 
 Habegger, 139 Fed. 623, 3 Ann. Cas. 12 Pratt v. Bothe, 130 Fed. 670, 65 
 
 276, 71 C. C. A. 607, 15 Am. Bankr. C. C. A. 48, 12 Am. Bankr. Rep. 529. 
 
 Rep. 198; In re Shiebler, 163 Fed. 13 In re Shiebler, 163 Fed. 545, 20 
 
 545, 20 Am. Bankr. Rep. 777; Furth Am. Bankr. Rep. 777. And see In re 
 
 V. Stahl, 205 Pa. St. 439, 55 Atl. 29, Stolp, 199 Fed. 488. 
 
 10 Am. Bankr. Rep. 442. U In re Wood, 210 U. S. 246, 28 S. 
 
§ 469] AMOUNT, ETC. OF COMPENSATION. 827 
 
 state court has no jurisdiction in this respect." Proceedings to 
 test the propriety and reasonableness of payments to an attorney 
 for services rendered before the payment, as well as those to be 
 rendered in the bankruptcy proceeding itself, may be taken in the 
 bankruptcy court in the form of a motion to fix the allowance, and 
 for an order directing the return of the balance.** Such notice, 
 by mail or otherwise, as the court shall direct, of the proceeding so 
 taken, is sufficient, provided the attorney is given an opportunity 
 to appear and contest the motion." These proceedings do not in- 
 fringe the constitutional right of trial by jury.** 
 
 Apportionment of Fees. 
 
 § 469. Generally. — Attorneys who jointly undertake to de- 
 fend a lawsuit are, for all practical purposes at least, special or 
 limited partners in respect to the matter so undertaken,** and, in 
 the absence of any agreement to the contrary, they are entitled to 
 share equally in the compensation.^" ^Neither can charge the other 
 for extra services,* and mere neglect by one of them to discharge 
 his duties will not be an abandonment of the contract, nor extin- 
 ct. 621, 52 U. S. (L. ed.) 104G, 20 the exercise of ancillary jurisdiction. 
 Am. Bankr. Rep. 1. 15 In re Wood, 210 U. S. 246, 28 S. 
 
 Ancilla/ri/ Jurisdiction. — It has Ct. 621, 52 U. S. (L. ed.) 1046, 20 
 been held that a trustee in bank- Am. Bankr. Rep. 1; Swartz v. Frank, 
 ruptcy cannot maintain a plenary 183 Mo. 439, 82 S. W. 60. 
 suit in a court of bankruptcy to re- 16 In re Shiebler, 163 Fed. 545, 20 
 
 cover, in another jurisdiction, exces- Am. Bankr. Rep. 777. 
 sive payments or transfers to counsel n In re Wood, 210 U. S. 240, 28 S. 
 
 made by a bankrupt, in contempla- Ct. 621, 52 U. S. (L. ed.) 1046, 20 Am. 
 tion of bankruptcy proceedings, for Bankr. Rep. 1. 
 
 services to be rendered, where that 18 In re Wood, 210 U. S. 246, 28 S. 
 
 court has made no order in the pro- Ct. 62], 52 U. S. (L. ed.) 1046, 20 Am. 
 ceeding authorized by section 60d to Bankr. Rep. 1. 
 
 re-examine and reduce such payments 19 Henry v. Bassett, 75 Mo. 89 ; 
 
 or transfers. In re Wood, 210 U. S. Senneff v. Healy, (la.) 135 N. W. 27. 
 248, 28 S. Ct. 621, 52 U. S. (L. ed.) 20 Senneff v. Healy, (la.) 135 N. W. 
 
 1046, 20 Am. Bankr. Rep. 1. 27; Henry v. Bassett, 75 Mo. 89. See 
 
 But see section 2 (20) of the bank- also Hurst v. Durnell, 1 Wash. 438, 
 ruptcy act (Fed. Stat. Ann. Supp. 12 Fed. Cas. No. 6,928; Matter of 
 1912, p. 480), which was added by Lockman, 4 Abb. N. Cas. (N. Y.) 173. 
 the amendment of 1910, providing for 1 Henry v. Bassett, 75 Mo. 89. 
 
828 AMOUNT, ETC. OF COMPENSATION. [§ 469 
 
 guish his claim to the proceeds,* Thus where the heirs of a de- 
 cedent agreed in writing to the employment of two attorneys, to 
 whom the management of litigation in which the estate was in- 
 volved should be given, and who were to receive for their services 
 twenty-five per cent of the amount realized for the estate, and one 
 of the attorneys selected declined to act, and another attorney was 
 employed by the heirs with the knowledge of the administrator to 
 assist in the litigation, and, although the attorney thus retained 
 acted in conjunction with the first attorney, he had no knowledge 
 of the agreement for compensation until after the litigation was 
 finished, it was held that an allowance of twelve and one-half per 
 cent to each attorney was correct.* Where, however, two or more 
 attorneys are severally employed by one litigant they are not part- 
 ners in any sense, nor should their compensation be apportioned on 
 a partnership basis.* Each of such attorneys may contract for his 
 compensation independently of the other ; * and, in the absence of 
 such a contract, each is entitled to the reasonable value of his in- 
 dividual services,^ and not to one-half of the value for the services 
 of both attorneys.' Thus in an action by one of several attorneys 
 for fees for professional services rendered in a case in which he 
 stood on an equal footing with the other attorneys, and did such 
 work as was necessary to be done by him, the court will not un- 
 dertake to accurately separate the services performed by each 
 counsel, but will determine from all the facts and circumstances 
 what is the fair value of the services sued for.' So, a statute 
 
 '2 Henry v. Bassett, 75 Mo. 89. But be treated as partners, and therefore 
 
 see Johnson v. Bright, 15 111. 464. entitled to share equally in a gross 
 
 3 In re McGee, 205 Pa. St. 590, 55 sum to be awarded to the partnership 
 
 Atl. 776. — an error which may have seriously 
 
 4Glidden v. Cowen, 123 Fed. 48, 59 disturbed in the sequel the propor- 
 
 C. C. A. 172, wherein it was said: tionate sums which are to be allowed 
 
 "This was the common ease of the to counsel." 
 
 employment of several counsel, not 6 See supra, § 444. 
 
 otherwise associated, in a case with- 6 MacDonald v. Tittmann, 96 Mo. 
 
 out any agreement except that im- App. 536, 70 S. W. 502. 
 
 plied to pay them each such sum as 7 MacDonald v. Tittmann, 96 Mo. 
 
 their services should reasonably de- App. 536, 70 S. W. 502. 
 
 serve. The master was clearly in er- 8 Eakin v. Peeples Hotel Co., 
 
 ror in adopting the theory proposed (Tenn.) 54 S. W. 87. 
 to him that those counselors should 
 
§ 470] AMOUNT, ETC. OF COMPENSATION. 829 
 
 which permits the apportionment of solicitor's fees among those 
 interested in certain cases applies only to amicable proceedings, 
 not to snits where parties employ counsel to protect their special 
 adverse interests.^ 
 
 § 470. Under Agreement for Division of Fees. — While an 
 attorney has no implied power to retain associate counsel at his 
 client's expense,^" he may, at least in the absence of objection by 
 the client, employ such aid on his own responsibility, and may 
 agree with the counsel so employed as to a division of the fees. 
 Agreements of this character, being neither contrary to public pol- 
 icy nor good morals,^^ may be enforced by action,^^ though not by 
 summary proceedings.*' Thus where an attorney contracted with 
 the heirs of certain lands, adversely held, to proceed for the recov- 
 ery thereof at his own expense in consideration of a certain interest 
 therein, and, during the litigation, assigned part of his interest to 
 attorneys and others assisting him, and, after the property was re- 
 covered, it was sold in partition proceedings, and was bought and 
 conveyed to a trustee for the mutual benefit of the heirs, their at- 
 torneys and others, it was held that this was a conclusive recog- 
 nition of the interests of the attorney and his assignees, and that 
 the heirs were estopped from questioning the validity of the origi- 
 nal contract.** Where a warrant was issued by a county to an at- 
 torney for services performed under a contract made by him and 
 another attorney, and the latter procured an injunction designed 
 to annul and cancel the warrant, and, in order to obtain the benefit 
 of the warrant, the attorney to whom it was issued was compelled 
 to defend the injunction suits and expend money in the defense 
 thereof, it was held that the expenditures made in the injunction 
 suit should have been allowed against the attorney who instituted 
 
 sCowdrey v. Hitchcock, 103 111. mem., 5 N. Y. S. 809; Aycock v. 
 
 262. Baker, (Tex.) 60 S. W. 273. 
 
 10 See supra, § 210. 18 See supra, § 357. See also Hay- 
 
 11 White V. Polhamus, 1 N. Y. City good v. Haden, 119 Ga. 463, 46 S. E. 
 Ct. 421. 625. 
 
 12 Chester v. Jumel, 125 N. Y. 237, " Chester v. Jumel, 125 N. Y. 237, 
 26 N. E. 297, reversing 53 Hun 629 26 N. E. 297. 
 
830 AMOUNT, ETC. OF COMPENSATION. [§ 471 
 
 the proceeding." But the fact that a lawyer has an agreement 
 with another person (not a lawyer) to render professional services 
 for a third person, the attorney and his employer to share in the 
 recovery, does not obligate the attorney to account to such employer 
 for fees received from a different client for services rendered in 
 connection with the same subject-matter.^* So, while contracts 
 made by an attorney with Indians must, in certain instances, be 
 approved by the commissioner of Indian affairs and the secretary 
 of the interior,^' these requirements do not prohibit the approved 
 contractors from employing others to assist them afterwards, or 
 from making contracts pledging a part of their prospective com- 
 pensation, provided such agreements do not amount to an assign- 
 ment of the original contract and the substitution of other con- 
 tractors.^' In the absence of statutory authority, however, it seems 
 that such agreements will not be enforced in the United States 
 Court of Claims." 
 
 Compensation of Law Partnerships. 
 
 § 471. Generally. — It is well settled that attorneys may en- 
 ter into partnership relations,*" and, as such, are entitled to com- 
 pensation for services rendered the same as individual practition- 
 ers.^ The proportion in which the members shall share in the 
 
 IS Henry v. Bassett, 22 Mo. App. sioner of Indian affairs and the secre- 
 
 667. tary of the interior in order to pre- 
 
 18 Casserleigh v. Green, 12 Colo. vent the taking of undue advantage 
 
 App. 515, 56 Pac. 189, affirmed 28 of their ignorance and improvidence. 
 
 Colo. 392, 65 Pac. 32. Gordon v. Gwydir, 34 App. Cas. (D. 
 
 "See section 2103 and 2106 U. S. C.) 508. 
 
 Fed. Stat.; 3 Fed. St. Ann. pp. 367, "Gordon v. Gwydir, 34 App. Cas. 
 
 370. See also supra, § 418. (D. C.) 508. See also Ovpen v. Dud- 
 
 The Indians are the wards of the .ley, 217 U. S. 488, 30 S. Ct. 602, 54 
 
 United States, and the supervision of U. S. (L. ed.) 851, affirming 31 App. 
 
 their affairs and the protection of Cas. (D. C.) 177; Maddux v. Botti- 
 
 their interests have been confided to neau, 34 App. Cas. (D! C.) 119; Eob- 
 
 the secretary of the interior. In ertson v. Gordon, 34 App. Cas. (D. 
 
 view of this relation it was eminently C.) 539. 
 
 proper to require all contracts made 19 Beddo v. U. S., 28 Ct. CI. 69. 
 
 with the Indians touching their lands 20 See supra, § 183. 
 
 and treaty claims, to be made sub- l Illinois. — Moshier v. Kitchell, 87 
 
 ject to the approval of the commis- 111. 18. 
 
§ 471] AMOUNT, ETC. OF COMPENSATION. 831 
 
 profits of the firm is usually fixed in the partnership agreement. 
 In the absence of such a stipulation, however, it will be presumed 
 that they are entitled to share equally.^ Nothing that either may 
 do in regard to the partnership business can be regarded as extra 
 services. One may do less, but the other cannot do more, than his 
 duty; and one partner has no remedy against another member of 
 the firm who does less than his dntj in transacting the business of 
 the firm, excepting in a proceeding to dissolve the partnership.* 
 Thus where two attorneys entered into a partnership to perform 
 legal services, the earnings to be divided, and one of them was not 
 to perform any services until a future date, but the other was to 
 perform services in the meantime, it was held that so long as the 
 first attorney was ready and willing to serve whenever called upon, 
 the fact that the other did substantially all the work gave him no 
 claim to more than half the earnings.* The mere neglect of one 
 of the partners to perform services under the partnership contract 
 does not, of itself, amount to an abandonment of the contract by 
 him.* A refusal to perform services, however, is of more signifi- 
 cance ; it might, under certain circumstances, amount to a dissolu- 
 tion of the firm, as between the parties, especially where the part- 
 nership is limited to a single transaction.* Certainly a partner 
 who so far disregards his duty to the firm of which he is a mem- 
 ber as to repudiate his obligation to serve the firm's clients, or any 
 of them, is erititled to no part of the compensation earned by the 
 other partners for services rendered in connection with the busi- 
 ness in which he refused to act.' 
 
 Michigan. — Eggleston v. Boardman, Wisconsin. — Jackson v. Bohrraan, 
 
 37 Mich. 19; Oatrander v. Capitol 59 Wis. 422, 18 N. W. 456; Reming- 
 
 Invest., etc., Assoc, 130 Mich. 312, 89 ton v. Eastern K. Co., 109 Wis. 154, 
 
 N. W. 964. 84 N. W. 898, 85 N. W. 321. 
 
 New ror/c— Harland v. Lilienthal, 2 Henry v. Bassett, 75 Mo. 89. 
 
 53 N. Y. 438. 3 Roth v. Boies, 139 la. 253, 115 N. 
 
 Tennessee. — Vinson v. Cantrell, 56 W. 930; Henry v. Bassett, 75 Mo. 89. 
 
 S. W. ]034. 4Bundy v. McLean, 104 Wis. 263, 
 
 Texas.— Wright v. MeCampbell, 75 80 N. W. 445. 
 
 Tex. 644, 13 S. W. 293 ; Landa v. 5 Henry v. Bassett, 75 Mo. 89. 
 
 Sliook, 87 Tex. 608, 30 S. W. 536. 6 Henry v. Bassett, 75 Mo. 89. 
 
 Washington. — Dennis v. Seattle 7 Denver v. Roane, 99 U. S. 355, 25 
 
 First Nat. Bank, 33 Wash. 161, 73 U. S. (L. ed.) 476. See also Troy v. 
 
 Pac. 1125. Hall, 157 Ala. 592, 47 So. 1035. 
 
832 AMOUNT, ETC. OF COMPENSATION. [§ 472 
 
 § 472. E£Eect of Dissolution. — On the dissolution of a law 
 partnership the duties, rights, and liabilities of the firm are gov- 
 erned by the general principles applicable to commercial partner- 
 ships.' When one member of a firm of general practitioners dies, 
 it becomes the duty of the surviving partners to hold themselves 
 in readiness to carry to completion all executory contracts for the 
 services of the firm which were in force at the time of its dissolu- 
 tion.^ In the absence of an objection by the firm's clients, the sur- 
 vivors may complete the business on hand,^" and, on so doing, will 
 be entitled to the compensation stipulated for with the firm, or, if 
 there is no such stipulation, to the reasonable value of the serv- 
 ices rendered.^* Where, however, the client had agreed with the 
 firm for a fixed sum for its services, the surviving members, or any 
 of them, who undertake to complete the work will be presumed to 
 have acted under the firm agreement in so far as the amount of 
 their compensation is concerned, and they are not entitled to any 
 additional pay in the absence of a new contract. ^^ The survivor, 
 having completed the service and received the compensation, must 
 pay to the representatives of the deceased partner so much of it as 
 is equivalent to his portion of the work done.*' ISTor can the sur- 
 vivors enter into a new contract with the client for the perform- 
 ance of the same services, and thereby defeat the claim of the estate 
 of a deceased partner for the compensation due him under the 
 original contract.** On the dissolution of a firm otherwise than by 
 
 8 See supra, § 185. See also Walker 12 Moses v. Bagley, 55 Ga. 283 ; 
 V. Goodrich, 16 111. 341; Clifton v. King v. Barber, 61 la. 674, 17 N. W. 
 Clark, 83 Miss. 446, 1 Ann. Cas. 396, 88; Dowd v. Troup, 57 Miss. 204; 
 36 So. 251, 102 Am. St. Kep. 458, 66 Clifton v. Clark, 83 Miss. 446, 1 Ann. 
 L.R.A. 821. Cas. 396, 36 So. 251, 102 Am. St. Rep. 
 
 9 Clifton V. Clark, 83 Miss. 446, 1 458, 66 L.E.A. 821 ; Bessie v. North- 
 Ann. Cas. 396, 36 So. 251, 102 Am. ern Pac. R. Co., 14 N. D. 614, 105 N. 
 St. Rep. 458, 66 L.R.A. 821. W. 936. 
 
 lOMoshier v. Kitchell, 87 111. 18; is Babbitt v. Riddell, 1 Grajit Cas. 
 
 Bessie v. Northern Pac. R. Co., 14 N. (Pa.) 161. 
 D. 614, 105 N. W. 936. 14 Clifton v. Clark, 83 Miss. 446, 1 
 
 11 Smith V. Hill, 13 Ark. 174; Ann. Cas. 396, 36 So. 251, 102 Am. St. 
 Walker v. Goodrich, 16 111. 341; Rep. 458, 66 L.R.A. 821. 
 Wright V. McCampbell, 75 Tex. 644, 
 13 S. W. 293; Noble v. Bellows, 53 Vt. 
 527. 
 
§ 472] AMOUNT, ETC. OF COMPENSATION. 833 
 
 death it is customary for the partners to agree among themselves 
 as to the disposition of the firm's business. These agreements will, 
 of course, bind the parties to them; thus it has been held that 
 where a law firm dissolves, assigning undisposed cases to the sev- 
 eral members, and the agreement of dissolution is supported by 
 sufficient consideration, each member who in good faith undertakes 
 to carry out his part of the agreement is entitled to prosecute to 
 completion the cases assigned to him, and services rendered by 
 other members to him in such cases will be deemed to be gratui- 
 tous.^° So, where one of the members is subsequently employed 
 under a new contract by a client of the old firm in a case com- 
 menced before the dissolution, and which was assigned to such 
 member, a settlement between the members of fees due to the firm 
 in such case, made with a knowledge of the subsequent employ- 
 ment, will be upheld.'^ In the absence of any agreement between 
 the partners, the individual members are entitled to the pro rata 
 share of the fees earned up to the time of dissolution." A member 
 of a law firm, who has withdrawn therefrom, can have no interest 
 in fees for services rendered by the remaining member of the firm 
 in concluding the firm business." As to the effect of a dissolution 
 on the right of the survivors to complete the firm business contrary 
 to the wishes of the client, a different situation is presented. The 
 rule in this respect is that where a client enters into a contract with 
 a firm of attorneys for certain legal services to be rendered for a 
 fee stated, or upon an implied promise to pay the value of the serv- 
 ices, and the firm is dissolved before the contract is finally com- 
 pleted, the client then has the option of abrogating the contract en- 
 tirely by discharging the survivors, settling for services previously 
 rendered, and employing other counsel to conclude his pending 
 litigation.''' But the client must exercise this right with reason 
 
 15 Lamb v. Wilson, 3 Neb. (unof- 272, 49 N. E. 459, 65 Am. St. Rep. 
 ficial) Rep. 496, 92 N. W. 167. 405; Isenhart v. Hazen, 10 Kan, App. 
 
 16 Lamb v. Wilson, 3 Neb. (unof- 577 mem., 63 Pac. 451. See also 
 ficial) Rep. 496, 92 N. W. 167. Troy v. Hall, 157 Ala. 592, 47 So. 
 
 "Justice V. Lairy, 19 Ind. App. 1035. 
 
 272, 49 N. E. 459, 65 Am. St. Rep. w McGill v. McGill, 2 Met. (Ky.) 
 
 405; Isenhart v. Hazen, 10 Kan. App. 258; Clifton v. Clark, 83 Miss. 446, 
 
 577 mem., 63 Pac. 451. 1 Ann. Cas. 396, 36 So. 651, 102 Am. 
 
 18 Justice V. Lairy, 19 Ind. App. St. Rep. 458, 66 L.R.A. 821, following 
 Attys. at L.' Vol. II.— 53. 
 
834 
 
 AMOUNT, ETC. OF COMPENSATIOM. 
 
 [§ 473 
 
 able promptness; otherwise he ■will be deemed to have authorized 
 the further prosecution of the suit or matter in hand by the sur- 
 viving partner or partners.^" Other matters in connection with the 
 dissolution of law partnerships have been considered heretofore.*' 
 
 § 473. On Winding Up Business. — The general rule is that 
 the members of a law partnership who, upon its dissolution, re- 
 main to wind up its affairs, are not entitled to compensation for 
 services rendered in that connection unless it is expressly agreed 
 otherwise, or can be fairly implied from the circumstances.' But 
 this rule does not extend beyond the requirements of merely wind- 
 ing up the firm's affairs ; * and where other services, such as those 
 involving the professional skill, learning, and experience of the 
 remaining partners, are required, a reasonable compensation, vary- 
 ing according to the nature of the business, should be allowed.' 
 
 Cox V. Martin, 75 Miss. 238, 21 So. 
 611, 65 Am. St. Rep. 604, 36 L.R.A. 
 800 ; Landa v. Shook, 87 Tex. 609, 30 
 S. W. 536. And see supra, § 185. 
 
 An obligation to furnish and apply 
 to the conduct of a lawsuit the learn- 
 ing, ability, and experience of two 
 particular attorneys is not performed 
 by furnishing the services of one of 
 them, although the services of others 
 of equal or superior ability are also 
 furnished. When one agrees to pay 
 a certain compensation for the ser- 
 vices in a specified matter of two or 
 more attorneys or agents whom he 
 selects or names, tliat contract is not 
 performed, and that compensation 
 cannot be recovered, when any one of 
 them dies, or atjandons the agreement, 
 before it is substantially performed, 
 because the services of that one have 
 not been furnished. Baxter v. Bill- 
 ings, 83 Fed. 790, 49 U. S. App. 767, 
 28 C. C. A. 85. 
 
 zoMcGill V. McGill, 2 Met. (Ky.) 
 258. 
 
 Zl See supra, § 185. 
 
 1 Consaul v. Cummings, 222 U. S. 
 262, 32 S. Ct. 83, 56 U. S. (L. ed.) 
 192, affirming 33 App. Cas. (D. C.) 
 132; Both v. Boies, 139 la. 253, 115 
 N. W. 930; Lamb v. Wilson, 3 Neb. 
 (unofficial) Eep. 496, 92 N. W. 167; 
 Thayer v. Badger, 171 Mass. 279, 50 
 N. E. 541; Sterne v. Goep, 20 Hun 
 (N. Y.) 396. 
 
 2 Lamb v. Wilson, 3 Neb. (unof- 
 ficial) Rep. 496, 92 N. W. 167. 
 
 8 Roth V. Boies, 139 la. 253, 115 N. 
 W. 930. And see Consaul v. Cum- 
 mings, 222 U. S. 262, 32 S. Ct. 83, 56 
 U. S. (L. ed.) 192, affirming 33 App. 
 Cas. (D. C.) 132. 
 
 In Sterne v. Goep, 20 Hun (N. Y.) 
 396, it was said that it would be a 
 harsh rule which would require the 
 surviving partner of a law firm to 
 take upon himself the conduct of all 
 pending litigations in the office at the 
 time of his partner's decease, and de- 
 vote his professional skill and labor 
 through a possible period of years to 
 conducting and closing it up for the 
 benefit of the estate of the deceased, 
 
§ 474] AMOUNT, ETC. OF COMPENSATION. 835 
 
 Thus the active partners, who undertake to finish the work, are en- 
 titled to extra compensation for the management of such litigation 
 as the firm had on hand at the time of its dissolution.* The part- 
 ners may, however, agree as to their respective rights in winding 
 up the firm business. Thus where all the partners agreed that the 
 partnership should be terminated on a certain day, and that the 
 business then on hand should be closed as rapidly as possible "as 
 partners under their original terms of association and in the firm 
 name," and that, in case of the death of either of them, his heirs 
 or representatives should receive one third of the fees in cases 
 nearly finished, and twenty-five per cent in other partnership cases, 
 it was held in an action brought by the executor of one of the part- 
 ners to recover his share of the fees, that the partners having by 
 agreement provided for the amount of the fees in case of death, 
 the survivors were not entitled to an allowance for winding up 
 the business.' 
 
 § 474. Services Performed in Individual Capacity. — 
 
 The members of a law firm constitute one person in law, and the 
 act of one in the course of the partnership business is the act of 
 all. The rendition of professional services by one who is a mem- 
 ber of the law firm is presumed to be in behalf of his firm, and 
 should he act in his individual capacity the burden is on him to 
 show that fact.^ One of the partners may, of course, be employed 
 individually, and, in such case, the compensation earned will be 
 divided with the other members of the firm imless the partnership 
 agreement provides otherwise. When attorneys in partnership 
 permit one member of their firm to make personal contracts for 
 his services, it is upon the implied condition that the other mem- 
 bers cannot be employed against their partner's client. They may 
 assist him, but they cannot oppose him. Nor can they recover for 
 
 and with the ohligation ultimately to 5 Denver v. Roane, 99 U. S. 355, 25 
 account to his representatives for an U. S. (L. ed.) 476, and compare Con- 
 equal share of all the profits so saul v. Cummings, 222 U. S. 262, 32 
 earned. S. Ct. 83, 56 U. S. (L. ed.) 192, af- 
 4 Roth V. Boies, 139 la. 253, 115 N. firming 33 App. Cas. (D. C.) 132, in 
 W. 930; Sterne v. Goep, 20 Hun (N. vchich this decision is referred to. 
 Y.) 396. See also Denver v. Roane, 6 Shirts k. Rooker, 21 Ind. App. 420, 
 99 U. S. 355, 25 U. S. (L. ed.) 476. 52 N. E. 629. 
 
836 AMOUNT, ETC. OF COMPENSATION. [§ 474 
 
 services rendered in such cases to their partner's personal client, 
 unless there is an express agreement to that effect. The presump- 
 tion is that such partner has made satisfactory arrangements with 
 the firm either for a division of his compensation, or for some 
 other valuable consideration.'' So, an attorney at law, who is also 
 a partner of a mercantile firm, is not entitled to charge commis- 
 sions for collecting the notes and accounts of that firm as against 
 his co-partner, in the absence of any special agreement to that ef- 
 fect. The legal presumption is that he was to collect the debts 
 due the firm, as a partner, for the benefit of the concern.' A con- 
 tract with a firm for the services of a particular partner at a stip- 
 ulated fee cannot be broken by the client upon the death of such 
 partner without tendering to the survivor a fair compensation for 
 the services already rendered; and if the surviving partner shall 
 render the services with due professional skill and diligence he is 
 entitled to the entire fee.® A member of a law firm has a right to 
 attend to his individual interests having no connection with the 
 practice of his profession, and his partners cannot complain un- 
 less such action so abstracts his attention or absorbs his time as to 
 materially interfere with his professional duties.^" This was true 
 as to services rendered by one of the partners to a corporation in 
 which he was a stockholder, and which were not of a legal nature, 
 and did not come within the scope of the partnership business or 
 interfere therewith.^' So, also, as to services rendered by one of the 
 partners as the executor of an estate,*^ or in caring for the prop- 
 erty and interests of his wife and relatives in probate proceedings. 
 These, and the like, are not "professional services," and the earn- 
 ings therein are not partnership property.*' There may, of course, 
 be an agreement between the partners to the effect that each, or 
 certain, of its members may be employed individually, and that 
 the compensation for services so rendered may be retained by the 
 
 TOstrander v. Capitol Invest., etc., "Brown v. Cragg, 230 111. 299, 82 
 
 Assoc, 130 Mich. 312, 89 N. W. 964. N. E. 569, reversing 129 111. App. 597. 
 
 8 Vanduzer v. McMillan, 37 Ga. 299. 12 Metcalfe v. Bradshaw, 145 111. 
 
 9 Smith V. Hill, 13 Ark. 174; 124, 33 N. E. 1116, 36 Am. St. Rep. 
 Wright V. McCampbell, 75 Tex. 644, 478, aW-rming 43 111. App. 286. 
 
 13 S. W. 293. And see wpm, § 472. 13 Roth «. Boies, 139 la. 253, 115 N. 
 
 10 Roth V. Boies, 139 la. 253, 115 N. W. 930. 
 W. 930. 
 
$§ 475, 476] AMOUNT, etc. oj? compensation. 
 
 837 
 
 partners so employed. In such cases the partner may maintain an 
 action in his own name for the value of his services,^* 
 
 § 475. Accounting. — Differences between law partners as to 
 the proper division of the firm profits are, as in the case of other 
 partnerships, adjustable in an action for an accounting," but not 
 in summary proceedings.'* Where one of the partners claims a 
 share in excess of the proportion to which he is entitled under the 
 written contract of partnership by virtue of an alleged change in 
 its terms, th« burden is upon him to establish the change by at 
 least a fair preponderance of the evidence.*'' Accounting between 
 attorney and client has been considered heretofore.*' 
 
 Retention of Fees from Funds in Hand. 
 
 § 476. Generally. — It is well settled that an attorney may re- 
 tain from the funds of his client, in his hands, the amount of his 
 
 HMeCabe v. Goodfellow, 21 Civ. 
 Pro. 66, 15 N. Y. S. 377. 
 
 16 Denver v. Roane, 99 U. S. 355, 25 
 U. S. (L. ed.) 476; Brown v. Cragg, 
 230 111. 299, 82 N. E. 569, reversing 
 129 111. App. 597; Bundy v. McLean, 
 104 Wis. 263, 80 N. W. 445. 
 
 There having 'been no general part- 
 nership between the parties, but 
 merely an arrangement that one 
 should receive and retain the fees 
 from civil cases, and the other those 
 from the criminal business, and this 
 having been done, there is no occasion 
 for an accounting. Fitzsimmons V. 
 Kobb, 193 Pa. St. 518, 44 Atl. 558. 
 
 iBDorsey v. Metropolitan St. E. 
 Co., 143 Mo. App. 428, 128 S. W. 17. 
 
 "Roth V. Boies, 139 la. 253, 115 N. 
 W. 930. 
 
 In this accounting of the affairs 
 of a special partnership between at- 
 torneys at law, the survivor claims 
 compensation for services rendered 
 after dissolution of the firm. Claims 
 
 of this sort are not favored. They 
 lead to efforts to prove a, disparity 
 between the partners, when the law 
 implies equality. They necessitate a 
 balancing of the value of the work 
 of each in securing the business and 
 earning the profits, as well as a com- 
 parison of the time they may spend 
 on the matters under consideration. 
 Each partner is bound to devote him- 
 self to the firm's business, and there 
 is no implied obligation that, for per- 
 forming this duty, he should be paid 
 more than his proportionate share of 
 the gains. Neglect by one to do his 
 part may be of such character as to 
 justify a, dissolution. But as long 
 as the firm continues, there is usually 
 no deduction because one partner has 
 not been as active as the other. Con- 
 saul V. Cumraings, 222 U. S. 262, 32 
 S. Ct. 83, 56 U. S. (L. ed.) 192, af- 
 firming 33 App. Cas. (D. C.) 132. 
 18 See supra, § 344. 
 
838 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 476 
 
 compensation. If the exact sum has been agreed upon, that sum 
 may be retained; if not, then he may retain a sufficient sum to 
 cover the reasonable value of his services,^' with such sums as 
 were properly expended by him in the interest of- his client ; "" and 
 also like fees for the benefit of the associate counsel in the case em- 
 ployed by his client to assist him ; ^ and he may successfully defend 
 a suit against him for the recovery of any part of the reasonable 
 charges so retained,* though it is said that there is no implied 
 agreement that the attorney shall look to the fund to be realized as 
 a primary source of payment.* It is immaterial that his compen- 
 
 19 Atos&a.— Nodine v. Hannum, 1 
 Alaska 302. 
 
 District of GolumMa. — Meloy v. Me- 
 loy, 24 App. Cas. 239. 
 
 Indiana, — Union Mut. L. Ins. Co. v. 
 Buchanan, 100 Ind. 63. 
 
 Louisiana. — Monget v. Tessier, 5 
 La. Ann. 165; Butchers' Union, etc., 
 Co. V. Crescent City Live-Stock, etc., 
 Co., 41 La. Ann. 355, 6 So. 508. 
 
 Massachusetts. — See Soper v. Man- 
 ning, 147 Mass. 126, 16 N. E. 752; 
 Blake v. Corcoran, 211 Mass. 406, 97 
 N. E. 1002. 
 
 Michigan. — Dowling v. Eggemann, 
 47 Mich. 171, 10 N. W. 187. 
 
 Minnesota. — Washington County v. 
 Clapp, 83 Minn. 512, 86 N. W. 775. 
 
 Missouri. — Beagles v. Robertson, 
 135 Mo. App. 306, 115 S. W. 1042. 
 
 New Jersey. — Sparks v. McDonald, 
 41 Atl. 369. 
 
 'New York. — Sherwood v. Buffalo & 
 New York City E. Co., 12 How. Pr. 
 136; In re Holland Trust Co., 70 Hun 
 323, 27 N. Y. S. 687. And see In re 
 Tracy, 1 App. Div. 113, 37 N. Y. S. 
 65, affirmed 149 N. Y. 608, 44 N. E. 
 1129. 
 
 North Carolina. — Wiley v. Logan, 
 95 N. C. 358. 
 
 Ohio. — Christy v. Douglas, Wright 
 485. 
 
 Pennsylvania. — Com. v. Herr, 1 
 Pearson 328; Balsbaugh v. Frazer, 19 
 Pa. St. 95. 
 
 Tennessee. — Foster v. Jackson, 8 
 Baxt. 433; Read V. Bostick, 6 Humph. 
 321. 
 
 Texas. — Kinsey v. Stewart, 14 Tex. 
 457; Randolph v. Randolph, 34 Tex. 
 181; Henry v. Boedker, 141 S. W. 
 ■811; Thomson v. Findlater, Hard- 
 ware Co., 156 S. W. 301. 
 
 Vermont. — Scott v. Darling, 66 Vt. 
 510, 29 Atl. 993; In re Aldrich, 86 
 Atl. 801. 
 
 West Virginia. — Bent v. Lipscomb, 
 45 W. Va. 183, 31 S. E. 907, 72 Am. 
 St. Rep. 815. 
 
 26 Balsbaugh v. Frazer, 19 Pa. St. 
 95. See also infra, § 486. 
 
 1 Rights of Associate Counsel. — 
 Jackson i'. Clopton, 66 Ala. 29; Louis- 
 ville, etc., R. Co. V. Proctor, (Ky.) 
 51 S. W. 591; Balsbaugh v. Frazer, 19 
 Pa. St. 95. See also Christy v. Doug- 
 las, Wright (Ohio) 485. 
 
 2 See supra, §§ 350-352; 362, 363. 
 See also Sparks v. McDonald, (N. 
 J.) 41 Atl. 369; Foster v. Jackson, 8 
 Baxt. (Tenn.) 433. 
 
 8 Bodfish V. Fox, 23 Me. 90, 39 Am. 
 Dec. 611; Nichols v. Seott, 12 Vt. 47. 
 
§ 476] AMOUNT, ETC. OF COMPENSATION. 839 
 
 sation was contingent upon success,* or that his client acted in a 
 fiduciary capacity,* or as a public official,* or that the fund has been 
 attached,'' or that the client died before the termination of the pro- 
 fessional relation,' or that the attorney accepted an order to pay 
 over the sum collected to another.' A writing given by a client to 
 his attorney, authorizing the attorney to -retain out of a judgment 
 when recovered, a part for his compensation, is an assignment of 
 such part.^" But an attorney at law who has collected money for 
 his client cannot set off, against his client's claim for that money, 
 a debt due to himself for services as counsel in a proceeding other 
 than that out of which the money came, unless the client has ex- 
 pressly agreed that the fund shall be so appropriated ; ^^ nor can 
 he retain out of money collected for his client as an individual, 
 compensation for his services rendered to the client as a trustee, 
 without establishing an agreement on the part of the client that 
 the money should be so retained.'* Thus the attorney for an ad- 
 ministratrix has no right to retain from funds collected for her, 
 an amount due to him from her decedent. '* Nor can an attorney 
 who receives from a collection agency a claim in the name of an- 
 other person, retain the money collected thereon to satisfy his de- 
 mand against the agency for services rendered to it.'* An attorney 
 
 1 Beagles v. Robertson, 135 Mo. a client, cannot, in the absence of an 
 
 App. 306, 115 S. W. 1042. agreement, apply it to the payment of 
 
 5 In re Holland Trust Co., 76 Hun the debts due him by the client, 
 323, 27 N. Y. S. 687. barred by limitations. Blair v. Blan- 
 
 6 Com. V. Herr, 1 Pearson (Pa.) ton, 54 S. W. 321, writ of error dis- 
 328. missed 93 Tex. 348, 55 S. W. 321. 
 
 ''Randolph v. Randolph, 34 Tex. Compare Scott v. Darling, 66 Vt. 
 
 181. 510, 29 Atl. 993, wherein it was said 
 
 SMeloy v. Meloy, 24 App. Cas. (D. that an attorney, in the absence of 
 
 C.) 239. special agreement, has a right to re- 
 
 9 Kinsey v. Stewart, 14 Tex. 457. tain money collected for his client un- 
 
 10 Bent V. Lipscomb, 45 W. Va. 183, til he is paid the general balance due 
 31 S. E. 907, 72 Am. St. Rep. 815. him for services. 
 
 llTrapnall v. Byrd, 22 Ark. 10; 18 Martin v. Throckmorton, 15 Pa. 
 
 Martin v. Throckmorton, 15 Pa. Su- Super. Ct. 632. 
 
 per. Ct. 632; Simpson v. Pinkerton, 13 In re Thresher, 29 Mont. 11, 73 
 
 10 W. N. C. (Pa.) 423; Maxey v. Pac. 1109. See also West v. Carle- 
 
 Besser, 44 Tex. 506. ton, 8 La. 254. 
 
 Debts Barred iy Limitation. — An i* McMath v. Manns Bros. Boot & 
 
 attorney, after collecting money for Shoe Co., (Ky.) 15 S. W. 879. 
 
840 AMOUNT, ETC. 01^ COMPENSATIOIf. [§ 476 
 
 cannot withhold money belonging to his client in order to make 
 the latter agree to unreasonable terms ; ^* nor can he exact a re- 
 ceipt in full as a condition of paying over the amount admitted to 
 be due.'® And the relation between attorney and client as to 
 money collected is not that of debtor and creditor, and retention 
 by the client of a check offered in full settlement by the attorney 
 is not an accord and satisfaction. ''' Nor can an attorney who re- 
 ceives a sum of money from his client for the purpose of effecting 
 a settlement, retain his fees out of the money so received.'' So, 
 where a husband is ordered to pay a certain sum weekly to his 
 wife's attorney for alimony, and to pay a further sum for counsel 
 fees, the attorney to whom such payment is made is not entitled to 
 use any part of the alimony for the payment of disbursements in 
 the action, but he is required to pay over the entire amount so re- 
 ceived for the wife's support.'* Nor can an attorney who renders 
 services in a suit for the recovery of public funds under a void 
 contract of employment, retain any portion of such funds as com- 
 pensation for his services under an implied contract.'" When it 
 appears that an attorney retains his client's money, claiming a lien 
 thereon, and upon the facts stated the right is clear, the amount 
 only being in question, the court has jurisdiction to determine that 
 question on an application to compel the payment of the moneys 
 retained ; ' and where the attorney's claim does not extend to the 
 whole fund, the court will order the surplus to be paid over.* In 
 order to entitle an attorney to retain a commission out of moneys 
 of an estate collected under the employment of the administrator, 
 he must show that the probate court authorized the employment, 
 or sanctioned it by the subsequent allowance of the claim; and 
 where such services are necessary to prevent loss or waste it is the 
 duty of the court to allow compensation.* 
 
 15 Robinson v. Hawes, 56 Mich. 135, rar, 104 la. 62], 74 N. W. 5; Maxey 
 
 22 N. W. 222. V. Besaer, 44 Tex. 506. 
 
 lecharboneau v. Orton, 43 Wis. 96. 20 State v. True, 116 Tenn. 294, 95 
 
 17 Wolfe V. Mack, 81 Misc. 185, 142 S. W. 1028. 
 
 JJ. Y. S. 433. 1 In re Knapp, 85 N. Y. 284. See 
 
 18 Anderson v. Bosworth, 15 E,. I. also supra, § 354. 
 
 443, 8 Atl. 339, 2 Am. St. Rep. 910. 2 Jeffries v. Laurie, 23 Fed. 786. 
 
 19 In re Belles, 78 App. Div. ]80, 79 3 Turner v. Tapscott, 30 Ark. 312. 
 N. Y. S. 530. See also Farrar v. Far- 
 
§ 477] 
 
 841 
 
 Allowance of Counsel Fees in Equitable Proceedings. 
 
 § 477. Allowance from Funds Recovered. — The well- 
 established practice of the court of equity as to counsel fees differs 
 in several particulars from the rules of law. Thus where a fund 
 is brought into a court of equity through the services of an attor- 
 ney, he is regarded as the equitable owner thereof to the extent of 
 the reasonable value of his services ; and, to that extent, the court 
 administering the fund will intervene for his protection,* especi- 
 ally where the attorney looks to such fund for his compensation.* 
 When many persons have a common interest in a trust property or 
 fund, and one of them, for the benefit of all, and at his own cost 
 and expense, brings a suit for its preservation or administration, 
 the court of equity in which the suit is brought will order that the 
 plaintiff be reimbursed his outlay from the property of the trust, 
 or by proportional contribution from those who accept the benefits 
 of his efforts.® So where suits in equity, instituted on behalf of 
 the bondholders and stockholders of a corporation, result in gather- 
 
 * United States. — Internal Imp. 
 Fund V. Greenough, ]05 U. S. 537, 26 
 U. S. (L. ed.) 1157; Ex p. Plitt, 2 
 Wall. Jr. (C. C.) 453, 19 Fed. Cas. 
 No. 11,228; Colley V. Wolcott, 187 
 Fed. 595, 109 C. C. A. 425. 
 
 Nebraska.- — In re Creighton's Es- 
 tate, 93 Neb. 90, 139 N. W. 827. 
 
 Pennsylvania. — In re Francis, 5 
 Kulp 17; McKelvy's Appeal, 108 Pa. 
 St. 615; Spencer's Appeal, 9 Atl. 523. 
 
 South Carolina. — Nimmons v. Stew- 
 art, 13 S. C. 445. 
 
 West Virginia, — Weigand v. Alli- 
 ance Supply Co., 44 W. Va. 133, 28 S. 
 E. 803. 
 
 6 McKelvy's Appeal, 108 Pa. St. 
 615; Blair v. Harrison, 57 Fed. 257, 
 18 U. S. App. 27, 6 C. C. A. 326, af- 
 firming 51 Fed. 693. 
 
 A mere stakeholder, even though he 
 is an attorney, who has been made a 
 party to a proceeding for the recovery 
 of a fund in his possession, will not be 
 
 allowed counsel fees wliere he has 
 personally appeared in the proceed- 
 ing; it is otherwise, however, as to his 
 costs and expenses. Moore v. Jones, 
 23 Vt. 739, 17 Fed. Cas. No. 9,768. 
 
 6 United States. — Hobbs v. McLean, 
 117 U. S. 567, 6 S. Ct. 870, 29 U. S. 
 (L. ed.) 940; Adams v. Kehlor Mill- 
 ing Co., 38 Fed. 281; Lamar v. Hall, 
 129 Fed. 79, 63 C. C. A. 521, revers- 
 ing 129 Fed. 141. 
 
 Kentucky. — Stone v. Wilson, 56 S. 
 W. 817, 22 Ky. L. Rep. 190. 
 
 Maryland. — Bauernschmidt v. Bau- 
 ernschmidt, 101 Md. 148, 60 Atl. 437. 
 
 In proceedings to wind up the af- 
 fairs of a corporation, counsel fees 
 for services rendered therein and in 
 the general litigation should be paid 
 out of the aggregate recovery, all 
 creditors claiming benefit of the suit 
 to contribute pro rata, while fees for 
 counsel services as are performed 
 only for petitioning creditors must be 
 
842 AMOUNT, ETC. OF COMPENSATIOIir. [§ 477 
 
 ing a fund which inures to the benefit of all, such fund, being 
 purely equitable, is subject to the payment of equitable costs, in- 
 cluding the fees and disbursements of the solicitors for the com- 
 plainants for services rendered up to the time of final decree.'' 
 This rule has also been applied to creditors' suits where a fund 
 has been realized by the diligence of the plaintiff,' and to suits for 
 the recovery of property wrongfully converted ' or fraudulently 
 transferred,^" and to recoveries from a decedent's estate,*^ and also 
 where the parties for whose benefit the services were rendered are 
 infants or lunatics, or, from any other cause, are not capable of 
 contracting; ^* and, generally, in all cases, where the parties are 
 numerous and have an interest in common for the benefit of which 
 professional services are rendered at the instance of one or more 
 of them.^* The rule rests upon the ground that where one litigant 
 has borne the burden and expense of a litigation that has inured 
 to the benefit of others as well as himself, those who have shared 
 in the benefits should contribute to the expense.^* Such contribu- 
 tion, for want of a better name, is often spoken of merely as an 
 equity or a lien. In so far aS it may be deemed to be a lien, it will 
 be considered later.*® A previous agreement of the parties, or an 
 
 paid by the latter out of funds re- etc., Co., 99 Tenn. 371, 42 S. W. 19; 
 
 covered for them. Moses v. Oeoee Blount County Bank v. Smith, 48 S. 
 
 Banl?, 1 Lea (Tenn.) 398. W. 296; Campbell v. Provident Sav., 
 
 T Edwards v. Bay State Gas Co., etc., Soc, 61 S. W. 1090. 
 
 172 Fed. 971; Colley v. Wolcott, 187 9 Harrison v. Perea, 168 U. S. 311, 
 
 Fed. 595, 109 C. C. A. 425. See also 18 S. Ct. 129, 42 U. S. (L. ed.) 478. 
 
 Campbell v. Provident Sav., etc., l" Adams v. Kehlor Milling Co., 38 
 
 Soc, (Tenn.) 61 S. W. 1090. Fed. 281; Colley v. Wolcott, 187 Fed. 
 
 8 England.— Stanton, v. Hatfield, 1 595, 109 C. C. A. 425. 
 
 Keen 358 ; Thompson v. Cooper, 2 Col. " Kirk v. Breed, 4 Ohio Dec. 403, 
 
 Ch. Cas. 87; Tootal v. Spicer, 4 Sim. 3 Ohio N. P. 122; Nimmons v. Stew- 
 
 510; Larkins v. Paxton, 2 Myl. & K. art, 13 S. C. 445. 
 
 320; Barker v. Wardle, 2 Myl. & K. 12 Nimmons v. Stewart, 13 S. C. 
 
 818; Sutton v. Doggett, 3 Beav. 9. 445. 
 
 United States. — Internal Imp. Fund 18 u. S. v. Boyd, 79 Fed. 858 ; Nim- 
 
 V. Greenough, 105 U. S. 537, 26 U. S. mons v. Stewart, 13 S. C. 445. 
 
 (L. ed.) 1157; Central E. Co. t/-. Pet- 14 Internal Imp. Fund v. Green- 
 
 tus, 113 U. S. 116, 5 S. Ct. 387, 28 U. ough, 105 U. S. 527, 26 U. S. (L. ed.) 
 
 S. (L. ed.) 915. 1157; Lamar v. Hall, 129 Fed. 79, 63 
 
 Tennessee. — Bristol-Goodson Elec- C. C. A. 521. 
 
 trie Light, etc., Co. v. Bristol Gas, IB See in/ro, § 618 et seq. 
 
§ 477] AMOUNT, ETC. OF COMPENSATION. 
 
 843 
 
 order of the court that a receiver should employ counsel without 
 compensation, is not binding on the court in equity ; and, whenever 
 it may determine that counsel should be compensated for preserv- 
 ing a fund in court, it may direct a fee to be paid to the receiver's 
 counsel out of such fund.'^ But, even though there is a fund in 
 its keeping, the court will not interfere between an attorney and 
 client in making allowance for professional services.*^ And the 
 amount allowed should be credited to the client on his contract 
 with the attorney.*' The amount which shall be allowed is, as a 
 rule, fixed by the judge *^ in the exercise of a sound judicial discre- 
 tion, and with due regard to the interests of all parties concerned.^" 
 The attorney, if he so desires, should be heard as to the reasonable- 
 ness of the allowance.' Where a number of cases present the same 
 questions, and certain ones are selected as test cases, the amount 
 allowed to attorneys should be charged pro rata against the whole 
 number of cases.^ The practice varies to some extent in the sev- 
 eral jurisdictions. Generally, however, an attorney may have a 
 rule to show cause why a fund in court should not be applied in 
 payment of his fees.' It is not necessary to attach a bill of par- 
 ticulars.* And when an allowance to the complainant is proper 
 on account of solicitors' fees, it may be made directly to the solici- 
 tors themselves, without any application by their immediate 
 client.' In a suit by the United States to enjoin a sale of timber 
 effected by an attorney for a band of Indians, the timber having 
 been sold and the sale approved by the court, the attorney was per- 
 mitted to intervene for the allowance of his claim for services in 
 effecting the sale, to be paid out of the proceeds.® Where a fund 
 
 16 Oliver v. South Carolina Inter- 1 Combs v. Combs, 82 S. W. 298, 26 
 state, etc., Exposition Co., 68 S. C. Ky. L. Rep. 617. 
 
 568, 47 S. E. 988. 2 Greeff v. Miller, 87 Fed. 33. 
 
 17 Mordecai v. Devereux, 74 N. C. 8 Walker v. Floyd, 30 Ga. 237. See 
 673. also Olds v. Tucker, 35 Ohio St. 581. 
 
 18 Shreve v. Freeman, 44 N. J. L. * Walker v. Floyd, 30 Ga. 237. 
 
 78; Freeman v. Shreve, 86 Pa. St. 135. s Central R. Co. v. Pettus, 113 U. S. 
 
 WHerwig's Succession, 127 La. 127, 115, 5 S. Ct. 387, 28 U. S. (L. ed.) 
 
 53 So. 466. 915; Colley v. Wolcott, 187 Fed. 595, 
 
 20 Stoneburner v. Motley, 95 Va. 109 C. C. A. 425. 
 
 784, 30 S. E. 364 ; German Nat. Ing. 6 U. S. v. Boyd, 79 Fed. 858. 
 Co. V. Virginia State Ins. Co., 108 Va. 
 393, 61 S. E. 870. 
 
8i4 AMOUNT, ETC. OF COMPEIfSATIOlir. [§ 478 
 
 has been withdrawn from the custody of the court, it may be re- 
 called on a showing that such withdrawal is in fraud of the solici- 
 tor.'' On an appeal by one of a number of attorneys from an or- 
 der awarding them compensation for services rendered in a suit 
 from a fund in court, the Court of Appeals is not confined to the 
 question of the proper distribution between them of the entire sum 
 allowed for the services, but the whole question of the value of the 
 appellant's services is open, and the court may make a redivision 
 of the total amount so allowed, or may increase the allowance to 
 the appellant without disturbing the other allowances.* 
 
 § 478. When Allowance Will Be Denied. — The power, con- 
 sidered in the preceding section, of allowing counsel fees from 
 funds recovered in equity acts on the res alone; therefore, where 
 the res is beyond the control of the court, the attorney must seek 
 some other remedy.^ Thus where a final decree of distribution 
 has been made, awarding to a cestui que trust the entire balance 
 in the trustee's hands, the court cannot disturb the decree by mak- 
 ing an allowance for fees to counsel for the cestui que trust}" 
 
 While it is true that a chancellor will often order compensation 
 to the counsel of a losing party who is decreed to have no interest, 
 on the equitable ground that being a necessary party he was com- 
 pelled to litigate, or had sufiicient reason, and that the fund ought 
 in equity and good conscience to bear such expense,*^ coimsel fees 
 will not be allowed to those who assume a position antagonistic to 
 the preservation of the fund for the general welfare of all con- 
 cerned.^^ Thus where one brings adversary proceedings to take 
 the possession of trust property from those entitled to it, in order 
 that he may distribute it to those who claim adversely, and fails 
 in his purpose, such person has no right to demand reimbursement 
 
 T Dennis v. Kent Circuit Judge, 42 12 Hobbs v. McLean, 117 U. S. 567, 
 
 Mich. 249, 3 N. W. 950. 6 S. Ct. 870, 29 U. S. (L. ed.) 940; 
 
 SGlidden v. 0)wen, 123 Fed. 48, 59 Lamar v. Hall, 129 Fed. 79, 63 C. C. 
 
 C. C. A. 372. A. S21,'reversing 129 Fed. 141; Balti- 
 
 9 Bray v. Staples, 180 Fed. 321, more, etc., E. Co. v. Brown, 79 Md. 
 103 C. C. A. 451. 442, 29 Atl. 524; Roller v. Paul, 106 
 
 10 In re Gingrich, 9 Pa. Co. Ct. 16. Va. 214, 55 S. E. 558 ; McCormick v. 
 
 11 Freeman v. Shreve, 86 Pa. St. Elsea, 107 Va. 472, 59 S. E. 411. 
 135. 
 
§ 478] AMOUNT, ETC. OF COMPENSATION. 84.5 
 
 of his expenses out of the trust fund, or contribution from those 
 whose property he sought to misappropriate.^' So, where a client 
 does not participate in a fund brought into court, but is postponed 
 to older liens, the attorney is not entitled to a commission on the 
 money collected, although it is by his efforts the money is brought 
 in for distribution.** One employed by the policy holders of a 
 mutual insurance company to contest the validity of assessments 
 laid upon them, in enjoining the company from doing business, is 
 not entitled to be paid for his services out of the funds in the 
 hands of the receivers.'* Where there were two parties, each claim- 
 ing to be the rightful governing body of a corporation, and acting 
 in hostility to each other, the attorneys acting for that party which 
 is adjudged not to be the legal governing body cannot recover for 
 their services from the funds of the corporation.** It has also 
 been held that counsel fees will not be allowed for services which 
 were not beneficial.*" 
 
 In some jurisdictions attorneys' fees cannot be made a charge 
 upon a general fund for distribution, even though such fund be- 
 came available by reason of their professional services, unless it 
 also appears that such counsel were, expressly or impliedly, bound 
 to serve all of the owners of such fund ; and it is immaterial that 
 those who did not employ such counsel were indirectly benefited 
 by their services.*^ And in any event it is only where the allow- 
 ance is to be made out of a common fund that the power can be 
 
 13 Hobbs V. McLean, 117 U. S. 567, Maryland. — McGraw v. Canton, 74 
 
 6 S. Ct. 870, 29 U. S. (L. ed.) 940. Md. 554, 22 Atl. 132. 
 
 "Baxter v. Bates, 69 Ga. 587. Mississippi. — Rives v. Patty, 74 
 
 16 Com. V. Mechanics' Mut. F. Ins. Miss. 381, 20 So. 862, 60 Am. St. Kep. 
 
 Co., 122 Mass. 421. 5]0. 
 
 16 Com. V. Order of Solon, 192 Pa. South Carolina. — Nimmons v. Stew- 
 
 St. 487, 43 Atl. 1084. art, 13 S. C. 445 ; Ex p. Port, 36 S. C. 
 
 "Merriclc v. Bonness, 66 Minn. 39, 15 S. E. 333; Park v. Laurens, 68 
 
 135, 68 N. W. 850; Dvrinnell v. Bad- S. C. 218, 46 S. E. 1012; Cauthen v. 
 
 ger, 74 Minn. 405, 77 N. W. 219. See Cauthen, 76 S. C. 226, 56 S. E. 978. 
 
 also Waters v. Greenway, 17 Ga. 592; Tennessee. — See State v. Edgefield, 
 
 Mitchell V. Atkins, 71 Ga. 680 ; Hume etc., E. Co., 4 Baxt. 92. 
 
 V. Commercial Bank, 13 Lea (Tenn.) Virginia. — See German Nat. Ins. 
 
 496. Co. V. Virginia State Ins. Co., 108 Va. 
 
 18 LoMJsta»a.— Gentile v. Plasencia, 393, 61 S. E. 870. 
 10 La. Ann. 203. 
 
846 AMOUNT, ETC. OF COMPENSATIOlir. [§ 478 
 
 exercised. The court cannot adjudicate contract rights between 
 attorney and client." 
 
 It is, of course, true that each client should compensate his 
 own solicitor, and that an attorney cannot make another person 
 his debtor by voluntarily rendering services in his behalf without 
 his express of implied assent. But the allowance of compensation 
 to attorneys out of funds recovered in equity is not in conflict 
 with this principle ; indeed, it is founded upon it, for it depends 
 on the principle of agency; the actual plaintiff being the repre- 
 sentative of the other beneficiaries. The application of this prin- 
 ciple is of every-day occurrence in the courts. Executors, adminis- 
 trators, guardians, receivers, and other trustees, as the agents and 
 legal representatives of the certain beneficiaries, are allowed 
 credit for necessary and, reasonable charges, including attorney's 
 fees, incurred by them in the protection and administration of 
 the trust fund. The same principle is extended to other cases.'" 
 Counsel whose services inure to the benefit of several persons hav- 
 ing interests in common, may truthfully be said to represent them 
 all, although, in fact, he was retained only by some of them, those 
 suing having assumed to retain him for all. There is usually an 
 express promise by the parties plaintiff to pay their solicitor, and, 
 if not, a promise to pay him is implied by the performance and 
 the acceptance of the solicitor's services. It seems equally clear 
 that the creditors or other beneficiaries of the trust who come into 
 court and accept a part of the proceeds of the property recovered 
 or preserved by the litigation, are bound by an implied promise to 
 pay, out of the proceeds of the fund received by them, their pro- 
 portionate part of the reasonable compensation allowed the solici- 
 tor who successfully conducted the litigation.'^ 
 
 19 A court of equity, in deciding a press or implied, with the party to be 
 
 contest between individuals respect- charged or his representative. Park 
 
 ing' their rights in certain property, v. Laurens, 68 S. C. 218, 46 S. E. 
 
 when it has adjusted all the equities, 1012; Cauthen v. Cauthen, 76 S. C. 
 
 and adjudged the rights of the par- 226, 56 S. E. 978. And see Rumsey 
 
 ties, is without power to go further v. Frank, 84 Mo. App. 508. 
 
 and say what fee the several parties 28 See the preceding section, 
 
 shall pay their respective counsel. 81 Lamar v. Hall, 129 Fed. 79, 63 C. 
 
 Claims for such services against per- C. A. 521. 
 sons sui juris rest on contract, ex- 
 
§ 479] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 847 
 
 § 479. In Partition Proceedings. — Amicable partition pro- 
 ceedings being for the benefit of all parties in interest, it is usual 
 to allow reasonable compensation to the attorney who conducts 
 them.* Where, however, the proceeding is adverse, each party is 
 liable only for the counsel retained by him. He is not obliged to 
 
 1 Alabama. — Flomerfelt v. Siglin, 
 
 155 Ala. 6.33, 47 So. 106. 
 
 District of Columbia. — See Arnold 
 V. Carter, 19 App. Cas. 259. 
 
 Illinois.— 'LiWy v. Shaw, 59 111. 72; 
 Stempel v. Thomas, 89 111. 146; 
 Schaefer v. Kienzel, 123 111. 430, 15 
 N. E. 164; Habberton v. Habberton, 
 
 156 111. 444, 41 N. E. 222; Walker v. 
 Tink, 159 111. 323, 42 N. E. 773; 
 Poulter V. Poulter, 193 111. 641, 61 
 N. E. 1056; McMullen v. Reynolds, 
 209 111. 504, 70 N. E. 1041, reversing 
 105 111. App. 386; Jespersen v. Mech, 
 213 111. 488, 72 N. E. 1114; Jones v. 
 Young, 228 111. 374, 81 N. E. 1042; 
 Poage «!. Smith, 101 111. App. 261 ; 
 Searl v. Searl, 122 111. App. 129; 
 Fread v. Hoag, 132 111. App. 233. See 
 also Reynolds v. McMillan, 63 111. 
 46; Case v. Case, 103 111. App. 177. 
 
 Iowa. — Smith ;;. Smith, 132 la. 
 700, 109 N. W. 194, 119 Am. St. Rep. 
 581. 
 
 Kentucky. — Lang v. Constance, 46 
 S. W. 693. 
 
 Louisiana. — See Ruthenberg v. Hel- 
 berg, 43 La. Ann. 410, 9 So. 99. 
 
 Michigan. — Greusel v. Smith, 85 
 Mich. 574, 48 N. W. 616; Barbour v. 
 Patterson, 145 Mich. 459, 108 N. W. 
 973. 
 
 Minnesota. — Hansom v. Ingwald- 
 Bon, 84 Minn. 346, 87 N. W. 915. 
 
 Mississippi. — HoflFman v. Smith, 61 
 Miss. 544; Neblett v. Neblett, 70 
 Miss. 572, 12 So. 598; Walker v. Wil- 
 liams, 84 Miss. 392, 36 So. 450. 
 
 Montana. — Murray v. Conlon, 19 
 Mont. 389, 48 Pac. 743. 
 
 Nebraska. — Johnson v. Emerich, 74 
 Neb. 303, 12 Ann. Cas. 851, 104 N. 
 W. 169; Harper v. Harper, 89 Neb. 
 269, 131 N. W. 218; Smith v. Palmer, 
 91 Neb. 796, 137 N. W. 843. 
 
 New Jersey. — Coles v. Coles, 13 N. 
 J. Eq. 365; Buttlar v. Buttlar, 70 N. 
 J. Eq. 675, 64 Atl. 110. See also Mc- 
 Mullin V. Doughty, 69 N. J. Eq. 649, 
 61 Atl. 265; Keeney v. Henning, 55 
 Atl. 88. 
 
 New York. — Story v. Lutkins, 77 
 Misc. 17, 135 N. Y: S. 118. 
 
 OMo. — Lowe ('. Phillips, 21 Ohio 
 St. 657. 
 
 Pennsylvania. — Clark's Appeal, 93 
 Pa. St. 369, distinguishing Snyder's 
 Appeal, 54 Pa. St. 67. See also Bell 
 V. Reel, 8 Pa. Dist. Ct. 346; Heft's 
 Estate, 9 Kulp 337. 
 
 Rhode Island. — Redecker v. Bowen, 
 15 R. I. 52, 23 Atl. 62; Robinson v. 
 Robinson, 24 R. I. 222, 52 Atl. 992. 
 
 Tennessee. — Scott v. Marley, 124 
 Tenn. 388, 137 S. W. 492. 
 
 Attorney as Pa/rty. — It has been 
 held, in some jurisdictions, that an 
 attorney who is a party to partition 
 proceedings and who conducts them 
 in person, is not entitled to an al- 
 lowance of an attorney fee. Girtman 
 V. Starbuck, 48 Fla. 265, 5 Ann. Cas. 
 833, 37 So. 731; Cheney v. Ricks, 168 
 111. 533, 94 N. E. 181. See also 
 § 484. 
 
848 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 479 
 
 pay any part of his opponents' counsel fees,* although he may be 
 benefited by the judgment.* The court in partition may not award 
 attorney's fees out of the common fund to plaintiff's attorneys, 
 for no part of the attorney's fees may be charged against defend- 
 
 8 Arkansas. — Cowling v. Nelson, 76 
 Ark. 146, 88 S. W. 913; Gardner v. 
 McAuley, 105 Ark. 439, 151 S. W. 
 997. 
 
 Illinois. — Strawn v. Strawn, 46 111. 
 412; Kilgour v. Crawford, 51 111. 
 249; Lilly v. Shaw, 59 111. 72; Stem- 
 pel V. Thomas, 89 111. 146; 'Cowdrey 
 V. Hitchcock, 103 111. 262; Stunz v. 
 Stunz, 131 111. 210, 23 N. B. 407; 
 Habberton v. Habberton, 156 111. 444, 
 41 N. E. 222; Hartwell v. De Vault, 
 159 111. 325, 42 N. E. 789; Metheny 
 V. Bohn, 164 111. 495, 45 N. E. 1011; 
 Dunn V. Berkshire, 175 111. 243, 51 
 N. E. 770; Bliss v. Seeiey, 191 111. 
 461, 61 N. E. 524 ; McMullen v. Seyn- 
 olds, 209 111. 504, 70 N. E. 1041, re- 
 versing 105 111. App. 386; Wachter 
 V. Doerr, 210 III. 242, 71 N. E. 401; 
 Jones r. Young, 228 111. 374, 81 N. E. 
 1042; Mulloy v. Mulloy, 231 111. 285, 
 83 N. E. 158; Shortz v. Ruttiger, 249 
 111. 494, 94 N. E. 181. See also 
 Gehrke v. Gehrke, 190 111. 166, 60 N. 
 E. 59. But also Elser v. Heinzer, 37 
 111. App. 298; Loveland v. Loveland, 
 96 111. App. 488; Case v. Case, 103 
 111. App. 177; Berger v. Neville, 117 
 111. App. 72. 
 
 Indiana. — Bell v. Shaffer, 154 Ind. 
 413, 56 N. E. 217; Osborne v. Eslin- 
 ger, 155 Ind. 351, 58 N. E. 439, 80 
 Am. St. Rep. 240; St. Clair v. Mar- 
 quell, 161 Ind. 56, 67 N. E. 693. And 
 see Hutts t. Martin, 134 Ind. 587, 33 
 N. E. 676. 
 
 Iowa. — McClain v. McClain, 52 la. 
 272, 3 N. W. 60; Duncan v. Duncan, 
 63 la. 150, 18 N. W. 858; Everett v. 
 
 Croskrey," 101 la. 17, 69 N. W. 1125; 
 Finch V. Garrett, 102 la. 381, 71 N. 
 W. 429; Convey v. Murphy, 154 la. 
 421, 134 N. W. 1065; Kuhn v. Downs, 
 136 N. W. 199. 
 
 Kentucky. — Bailey v. Barclay, 109 
 Ky. 636, 60 S. W. 377; Fristoe v. 
 Gillen, 80 S. W. 823, 26 Ky. L. Rep. 
 149; Hemingray v. Hemingray, 96 
 S. W. 574, 29 Ky. L. Rep. 879; Lang 
 V. Constance, 46 S. W. 693. See also 
 Thirlwell v. Campbell, 11 Bush 163; 
 Abert v. Taylor, 37 S. W. 676. 
 
 Massachusetts. — See Symonds v. 
 Kimball, 3 Mass. 299; Swett v. 
 Bussey, 7 Mass. 503. 
 
 Mississippi. — Hoffman v. Smith, 61 
 Miss. 544; Neblett v. Neblett, 70 Miss. 
 572, 12 So. 598; Walker v. Williams, 
 84 Miss. 392, 36 So. 450; Bowles v. 
 Wood, 90 Miss. 742, 44 So. 169; Mans- 
 field V. Olsen, 4 So. 545; Hardy v. 
 Richards, 60 So. 643. See also Potts 
 V. Gray, 60 Miss. 57. 
 
 Nebraska. — Oliver v. Lansing, 57 
 Neb. 352, 77 N. W. 802. 
 
 Neio Jersey. — Coles v. Coles, 13 N. 
 J. Eq. 365; McMullin v. Doughty, 69 
 N. J. Eq. 649, 61 Atl. 265, 68 N. J. 
 Eq. 776, 55 Atl. 115, 284, 64 Atl. 
 1134. 
 
 Ohio. — Young v. Stone, 55 Ohio St. 
 125, 45 N. E. 57. 
 
 Pennsylvania. — Grubb's Appeal, 82 
 Pa. St. 23; Fidelity Ins. Trust, etc., 
 Co.'s Appeal, 108 Pa. St. 339; Biles's 
 Appeal, 119 Pa. St. 105, 12 Atl. 833. 
 
 3 Abert v. Taylor, (Ky.) 37 S. W. 
 676. 
 
§ 479] AMOUNT, ETC. OF COMPENSATIOIT. 849 
 
 ant's share.* In some jurisdictions the allowance of counsel fees 
 in partition, or other equitable proceedings, must be based on an 
 implied or express contract of employment." Where not so based, 
 a reasonable fee is allowed.* These general principles are, in 
 effect, those stated in the two preceding sections; partition pro- 
 ceedings being of an equitable nature in all jurisdictions, and in 
 some states cognizable only in a court of equity. In most states 
 this subject is regulated by local laws, which must be consulted. 
 Thus under the California statute where litigation arises between 
 some of the parties to a partition suit, the court may refuse to 
 order the expense of such litigation to be paid by the parties there- 
 to or any of them.'' The Missouri statute provides, in effect, that 
 the judge of the court in which any partition suit was brought 
 may allow a reasonable fee to the attorney or attorneys bringing 
 the suit, and may in like manner make a reasonable allowance to 
 guardians ad litem when appointed, and that the fee and allow- 
 ance thus made shall be taxed and paid as other costs in the case.' 
 The New York code provides that where final judgment, confirm- 
 ing a sale, is rendered, the costs of each party to the action, and 
 the expenses of the sale, including the officer's fees, must be de- 
 ducted from the proceeds of the sale, and each party's costs must 
 be paid to his attorney.® In Tennessee it is, in effect, provided 
 
 4 Lee V. Lee, 150 la. 611, 1.30 N. 39 S. W. 451; Appleman v. Apple- 
 W. 128. man, 140 Mo. 309, 41 S. W. 794, 62 
 
 5 See the preceding section, note. Am. St. Rep. 732; Gulick v. Hunt 
 See also Westmoreland v. Martin, 24 ley, 144 Mo. 241, 46 S. W. 354; Pad 
 S. C. 238; Butler v. Butler, 73 S. C. gett v. Smith, 206 Mo. 303, 103 S. W. 
 402, 53 S. E. 646; Legg v. Legg, 34 943; Donaldson v. Allen, 213 Mo 
 Wash. 132, 75 Pac. 130. 293, 111 S. W. 1128, 127 Am. St. 
 
 SEllguth V. Ellguth, 250 111. 214, Rep. 601; Zellee v. Bobb, 13 Mo. App 
 
 95 N. E. 169. 581; Frank v. Crawford, 14 Mo. App 
 
 Mode of fisBing, see McMuUen v. 599; Whitsett v. Wamack, 95 Mo 
 
 Reynolds, 209 111. 504, 70 N. E. 1041, App. 296, 69 S. W. 24; Forsee v 
 
 reversing 105 111. App. 386. McGuire, 109 Mo. App. 701, 83 S. W, 
 
 7 Watson V. Sutro, 103 Cal. 169, 37 548; Liles r. Liles, 116 Mo. App. 413, 
 Pac. 201. 91 S. W. 983, 129 Mo. App. 117, 107 
 
 8 Rev. Stat. 1879, § 3389, Rev. Stat. S. W. 1111. 
 
 1899, §§ 7182, 7183, Rev. Stat. 3 899, 9 N. Y. Code Civ. Pro. § 1579. See 
 
 § 4422. See also Draper v. Draper, also Cooper v. Cooper, 27 Misc. 595, 
 
 29 Mo. 13; Lucas Bank v. King, 73 59 N. Y. S. 86, affirmed 51 App. Div. 
 
 Mo. 590; Eddie v. Eddie, 138 Mo. 599, 595, 64 N. Y. S. 901; Sprague i;. Eu- 
 Attys. at L. Vol. II.— 54. 
 
850 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 480 
 
 by statute that in all partition cases the court may, in its discre- 
 tion, order the fees of the 'attorneys for both parties to the suit 
 to be paid out of the common fund when the property is sold for 
 partition, and to be taxed as costs when the property is divided 
 in kind among the parties entitled thereto." 
 
 Allowance of Counsel Fees in Legal Proceedings. 
 
 § 480. Generally. — As a general rule counsel fees cannot be 
 recovered by either party in legal proceedings ; ^* thus it has been 
 held that the plaintiff's counsel fees in actions for libel or slander 
 cannot be taken into consideration as an element in determining 
 the amount of damages to be awarded,^* for the reason that such 
 fees are too remote and contingent.*' In Connecticut and Ohio, 
 a contrary rule is recognized ; and, in those states, it is held that, 
 in estimating the damages to be awarded in libel or slander suits. 
 
 gelbrecht, 29 Misc. 464, 61 N. Y. S. 
 952; Christy v. Christy, 6 Paige (N. 
 Y.) 170; Whittiraore v. Whittimore, 
 7 Paige (N. Y.) 38. 
 
 10 Pate V. Maples, (Tenn.) 43 S. 
 W. 740; Johnson v. Johnson, (Tenn.) 
 53 S. W. 226. 
 
 11 In Day v. Woodworth, 13 How. 
 363, 14 U. S. (L. ed.) 181, the court 
 said : "In many civil actions, such as 
 libel, slander, seduction, etc., the 
 wrong done to the plaintiff is inca- 
 pable of being measured by a money 
 standard; and the damages assessed 
 depend on the circumstances, showing 
 the degree of moral turpitude or 
 atrocity of the defendant's conduct, 
 and may properly be termed exem- 
 plary or vindictive rather than com- 
 pensatory. ... It is true that 
 damages assessed by way of example 
 may thus indirectly compensate the 
 plaintiff for money expenses in coun- 
 sel fees, but the amount of these fees 
 cannot be taken as the measure of 
 
 punishment or a necessary element 
 in its infliction." 
 
 18 Indiana. — Indianapolis Journal 
 Newspaper Co. v. Pugh, 6 Ind. App. 
 510, 33 N. E. 991; Grotius v. Ross, 
 24 Ind. App. 543, 57 N. E. 46. 
 
 loica. — Irlbeck v. Bierle, 84 la. 47, 
 50 N. W. 36. 
 
 Michigan. — Warren v. Ray, 155 
 Mich. 91, 16 Ann. Gas. 513, 118 N. 
 W. 741, 130 Am. St. Rep. 566. 
 
 Nevada. — See Thompson v. Pown- 
 ing, 15 Nev. 195. 
 
 New York. — Hicks v. Foster, 13 
 Bark 663. See also Halstead v. 
 Nelson, 24 Hun 395. 
 
 Texas. — Landa v. Chert, 45 Tex. 
 539. 
 
 IS Lanston Monotype Mach. Co. v. 
 Mergenthaler Linotype Co., 147 Fed. 
 871, affirmed 154 Fed. 42, 83 C. C. A. 
 154; Hicks V. Foster, 13 Barb. (N. 
 Y.) 663; Landa v. Chert, 45 Tex. 
 539. 
 
§ 480] 
 
 AMOUNT, ETC. OF COMPENSATION, 
 
 851 
 
 the jury may take into consideration the counsel fees of the 
 plaintiff." 
 
 So, also, it has been held that attorney fees cannot be recov- 
 ered in actions on appeal bonds merely stipulating for the pay- 
 ment of damages,*' although it would seem that the bond might 
 be so worded as to include attorney fees. In Alabama, however, 
 counsel fees are considered as part of the damages which may be 
 recovered in an action on an appeal bond, even though there is no 
 special stipulation therefor.*' In a number of jurisdictions coun- 
 sel fees are allowed to the successful party in proceedings for 
 contempt of court." Though apparently warranted by sound 
 
 M Wynne v. Parsons, 57 Conn. 73, 
 17 Atl. 362; Stevens v. Haiidly, 
 Wright (Ohio) 121; Sexton v. Todd, 
 Wright (Ohio) 316; Finney «. Smith, 
 31 Ohio St. 529, 27 Am. Eep. 524. 
 
 15 California. — Kellogg v. Howes, 93 
 Cal. 586, 29 Pac. 230. 
 
 Colorado. — Williams v. Fidelity, 
 etc., Co., 42 Colo. 118, 15 Ann. Cas. 
 722, 93 Pac. 1119. 
 
 Illinois. — Litchfield First Nat. Bank 
 V. Fidelity, etc., Co., 106 111. App. 
 367. 
 
 Indiana. — Noll v. Smith, 68 Ind. 
 188. 
 
 Kansas. — Deisher v. Gehre, 45 Kan. 
 583, 26 Pac. 3; Hughan v. Grimes, 
 62 Kan. 258, 62 Pac. 326; Barratt 
 V. Grimes, 10 Kan. App. 181, 63 Pac. 
 272. 
 
 Kentucky. — Welch v. Welch, 106 
 Ky. 406, 50 S. W. 687; Turner v. 
 Johnson, 106 Ky. 460, 50 S. W. 675. 
 
 South Carolina. — Chillicothe First 
 Nat. Bank v. McSwain, 93 S. C. 30, 
 75 S. E. 1106. 
 
 16 See Drake v. Webb, 63 Ala. 596 ; 
 Miller v. Vaughan, 78 Ala. 323; 
 Shows V. Pendry, 93 Ala. 248, 9 So. 
 462; Simmons v. Sharp, 2 Ala. App. 
 385, 56 So. 849; Wheeler o. Fuller, 
 4 Ala. App. 532, 58 So. 792. 
 
 IT Doubleday v. Sherman, 8 Blatchf. 
 45, 7 Fed. Cas. No. 4020; Durant 
 V. Washington County, Woolw. 377, 
 8 Fed. Cas. No. 4191; In re Tift, 11 
 Fed. 463; Stahl v. Ertel, 62 Fed. 920; 
 William Rogers Mfg. Co. v. Rogers, 
 38 Conn. 121; State v. District Ct. 
 113 Minn. 304, 129 N. W. 583; Cope- 
 land-Chatterson Co. v. Business Sys- 
 tems, 10 Ont. W. Rep. 92; Reg. v. 
 Ellis, 32 N. Bruns. 561, 713; Reg. 
 V. Wilkinson, 41 U. C. Q. B. 42. 
 
 In A'eio York expenses actually in- 
 curred for counsel have been held 
 properly Included in the fine, under a 
 statute relating to punishment for 
 contempt of court which provides 
 that a fine shall be imposed "sufficient 
 to indemnify the injured party for 
 the loss and injury produced by the 
 misconduct, and sufficient to satisfy 
 costs and expenses." Davis v. Sturte- 
 vant, 4 Duer 148; People v. Roch- 
 ester & S. L. R. Co. 76 N. Y. 294, af- 
 firming 14 Hun 371; Brett v. Brett, 
 33 Hun 547, affirmed 98 N. Y. 619; 
 Whitman v. Haines, 51 Hun 640 mem., 
 4 N. Y. S. 48, affirmed 119 N. Y. 
 639, 23 N. E. 1148; Van Valkenburgh 
 V. Doolittle, 4 Abb. N. Cas. 72; Fitz- 
 simmons i;. Ryan, 64 App. Div. 404, 
 72 N. Y. S. 65; Dollard v. Koronsky, 
 
852 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 480 
 
 considerations of policy, such allowance is ordinarily denied in 
 taxpayers' actions.*' 
 
 Recent years, however, have shown the development of a ten- 
 dency on the part of legislators to allow counsel fees hy way of 
 penalty or additional damages. The power to do so seems to be 
 beyond question, providing, of course, that constitutional safe- 
 guards are complied with. Thus it has been held that counsel 
 fees may be allowed by statute to a successful plaintiif in well- 
 defined classes of cases, even though no such allowance is made 
 to the defendant in the event of his prevailing in the action,*' a 
 common illustration being the foreclosure of mechanic's liens.'" 
 
 64 Misc. 611, 118 N. Y. S. 922. See 
 also Dejonge v. Brenneman, 23 Hun 
 332; Fall Brook Coal Co. v. Heck- 
 sher, 42 Hun 534, 4 N. Y. St. Kep. 
 657; Ross v. LaCagnina, 68 Misc. 
 497, 124 N. Y. S. 753. Compare 
 People V. Jacobs, 5 Hun 428, af- 
 firmed 66 N. Y. 8; Power v. Atliens, 
 19 Hun 165; People v. Cooper. 20 
 Hun 486; King v. Flynn, 37 Hun 
 329; Stubbs u. Ripley, 39 Hun 626; 
 In re Morris, 45 Hun 167, 10 N. Y. 
 St. Rep. 50; People v. Compton, 1 
 Duer 512; People v. Elmer, 3 Paige 
 85; Chapman v. Munson, 3 Paige 
 347; Fenlon v. Dempsey, 22 Abb. N. 
 Gas. 114, 2 N. Y. S. 763; Sudlow v. 
 Knox, 4 Abb. Dec. 326, 7 Abb. Pr. 
 N. S. 411 ; Matter of Jacobs, 49 How. 
 Pr. 370; Weill v. Weill, 18 Civ. Pro. 
 241, 10 N. Y. S. 627; Guerrier v. 
 Coleman, 135 App. Div. 46, 119 N. 
 Y. S. 895. 
 
 A similar statute has been similar- 
 ly construed in Utah and in Wiscon- 
 sin. Davidson v. Munsey, 29 Utah 
 181, 80 Pac. 743; My Laundry Co. v. 
 Schmeling, 129 Wis. 597, 109 N, W. 
 540. 
 
 In Iowa and Kansas an attorney's 
 fee is provided for by statute in prose- 
 cutions for contempt under the pro- 
 
 hibitory liquor law. Lingelbach v. 
 Hobson, 130 la. 488, 107 N. W. 168; 
 State V. Durein, 46 Kan. 695, 27 Pac. 
 148. 
 
 In New Jersey counsel fees in con- 
 tempt proceedings have been held not 
 to be properly taxable. O'Rourke v. 
 Cleveland, 49 N. J. Eq. 577, 25 Atl. 
 367, 31 Am. St. Rep. 719. 
 
 18 In the absence of statutory au- 
 thority, the plaintiff in a, taxpayer's 
 suit, though successful, can have no 
 allowance made him for counsel fees. 
 Marion County i}. Rives, 133 Ky. 477, 
 118 S. W. 309; Brundige v. Ashley, 
 62 Ohio St. 526, 57 N. E. 226; Cris- 
 well V. Everett School District No. 
 24, 34 Wash. 420, 75 Pac. 984. 
 
 However, in the case of Kimble v. 
 Franklin County, 32 Ind. App. 377, 
 66 N. E. 1023, it was held that a 
 taxpayer who had recovered for and 
 collected for the county sums of 
 money illegally appropriated by of- 
 ficers might be allowed his expenses, 
 including the fees of his attorneys. 
 
 19 Engebretsen v. Gay, 158 Cal. 30, 
 Ann. Cas. 1912A 690, 109 Pac. 880, 
 28 L.R.A.(N.S.) 1062. 
 
 80 Shaw V. Martin, 20 Idaho 168, 
 117 Pac. 853; Todd v. Howell, 47 
 Ind. App. 665, 95 N. E. 279; Fisher 
 
§ 480] AMOUNT, ETC. OF COMPENSATION. 853 
 
 A statute which allowed an attorney fee to a successful plaintiff 
 in an action against a railroad company for damages by fire caused 
 by the operating of a railroad, has been upheld on the ground that 
 it was a reasonable regulation to secure the prevention of such fires, 
 and not merely a provision to secure the payment of the debt.* 
 So, a statute which imposed a liability for injury to livestock on 
 unfenced railroads and, in addition to other damages, permitted 
 the recovery of a reasonable attorney fee, was held to be a valid 
 exercise of the state police power.^ And a statute which provided, 
 in substance, that it should be the duty of the court to allow the 
 plaintiff a reasonable attorney fee, in addition to a claim for 
 wages, whenever a mechanic, artisan, miner, laborer, servant, or 
 other employee, should have cause to bring a suit for wages, and 
 should establish his claim and show that a demand had been made 
 in writing for the amount due, has also been held to be constitu- 
 tional as embracing a well-defined class of cases and persons for 
 a basis.' 
 
 Where, however, a statute imposes an attorney fee in such a 
 manner as to offend against constitutional requirements it will, 
 of course, be invalid.* Thus it has been held that a statute pro- 
 viding for the recovery by the plaintiff, in an action for personal 
 services rendered by a laborer, clerk, servant, nurse, or other per- 
 son, of an attorney's fee, is in conflict with the Fourteenth Amend- 
 ment to the Federal Constitution, in that it denies to the defendant, 
 the equal protection of the law.' And as to a statute which pro- 
 
 V. Independent School Dist. 154 la. Terre Haute, etc., R. Co. v. Salmon, 
 
 125, 134 K VV. .545. And see Roraona 161 Ind. 131, 67 N. E. 918. 
 
 Oolitic Stone Co. v. Weaver, 49 Ind. 3 Vogel v. Pekoe, 157 111. 339, 42 
 
 App. 368, 97 N. E. 441; Anderson v. N. E. 386, 30 L.R.A. 491. 
 
 Donahue, 116 Minn. 380, 133 N. W. 4 Gulf , etc., R. Co. v. Ellis, 165 
 
 975; Lindquist v. Young, 119 Minn. U. S. 150, 17 S. Ct. 255, 41 U. S. 
 
 219, 138 N. W. 28. See, however, for (L. ed.) 666. 
 
 cases disallowing fee, Sattler «.. Knapp, s Chicago, etc., R. Co. v. Masliore, 
 
 60 Ore. 466, 120 Pac. 2; Hughes v. 21 Okla. 275, 17 Ann. Cas. 277, 96 
 
 Flint, 61 Wash. 460, 112 Pac. 633. Pae. 630; Oligschlager v. Steplien- 
 
 1 Atchison, T. & S. F. R. Co. v. son, 24 Okla. 760, 304 Pac. 345. And 
 Matthews, 174 U. S. 96, 19 S. Ct. see to the same effect Hocking Valley 
 609, 43 U. S. (L. ed.) 909. Coal Co. v. Rosser, 53 Ohio St. 12, 
 
 2 Illinois Cent. R. Co. v. Crider, 41 N. E. 263, 53 Am. St. Rep. 622, 29 
 91 Tenn. 489, 19 S. W. 618. See also L.R.A. 386. 
 
854 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 480 
 
 vided for an attorney fee of ten dollars to any person having a 
 valid claim against railroad corporations for personal services, or 
 labor, or for damages, it was held that the companies specified in 
 the statute were unduly discriminated against as debtors, and that 
 the equal protection of the law was denied them.* 
 
 The constitutionality of statutes providing for the allowance of 
 an attorney fee for the enforcement of mechanics and kindred liens 
 presents a conflict of opinion. In some states such legislation is 
 deemed to be inoffensive ; ' on the other hand, such statutes have 
 been declared to be unconstitutional in several jurisdictions, 
 either as class legislation, or as amounting to the deprivation of 
 property without compensation or due process of law.* 
 
 6 Gulf, etc., R. Co. V. Ellis, 165 U. 
 S. 150, 17 S. Ct. 255, 41 U. S. (L. 
 ed.) 666, reversing 87 Tex. 19, 26 
 S. W. 985. 
 
 1 Alaska. — Pioneer Mining Co. v. 
 Delamotte, 185 Fed. 752, 108 C. C. 
 A. 90. 
 
 Florida. — Dell v. Marvin, 41 Fla. 
 221, 26 So. 188, 79 Am. St. Rep. 171, 
 45 L.R.A. 201. 
 
 Idaho. — Thompson v. Wise Boy 
 Min., etc., Co., 9 Idaho 363, 74 Pac. 
 958; Robertson v. Moore, 10 Idaho 
 115, 77 Pae. 218; Nelson Bennett 
 Co. V. Twin Falls Land, etc., Co., 14 
 Idaho 5, 93 Pac. 789. 
 
 Indiana. — Duckwall v. Jones, 156 
 Ind. 682, 58 N. E. 1055, 60 N. ' E. 
 797. 
 
 Montana. — Wbrtman v. K!ein- 
 sclimidt, 12 Mont. 316, 30 Pac. 280; 
 Helena Steam-Heating, etc., Co. v. 
 Wells, 16 Mont. 65, 40 Pac. 78; Mur- 
 ray V. Swanson, 18 Mont. 535, 46 
 Pac. 441; Hill v. Cassidy, 24 Mont. 
 108, 60 Pac. 811. 
 
 New Mexico. — Genest v. Las Vegas 
 Masonic Bldg. Assoc, 11 N. M. 251, 
 67 Pac. 743. 
 
 Oregon. — Title Guarantee, etc., Co. 
 
 V. Wrenn, 35 Ore. 62, 56 Pac. 271, 
 76 Ann. St. Rep. 454. 
 
 Washington. — Griffith v. Maxwell, 
 20 Wash. 403, 55 Pac. 571; Fitch 
 V. Applegate, 24 Wash. 25, 64 Pac. 
 147; Littell v. Saulsberry, 40 Wash. 
 550, 82 Pae. 909. 
 
 8 Alahama. — Randolph v. Builders, 
 etc., Supply Co., 106 Ala. 501, 17 So. 
 721 ; McAnally v. Hawkins Lumber 
 Co., 109 Ala 397, 19 So. 417. 
 
 Colorado. — Davidson v. Jennings, 
 27 Colo. 187, 60 Pac. 354, 83 Am. 
 St. Rep. 49, 48 L.R.A. 340; Antlers 
 Park Regent Min. Co. v. Cunning- 
 ham, 29 Colo. 284, 68 Pac. 226 ; Sick- 
 man V. Wollett, 31 Colo. 58, 71 Pac. 
 1107; Los Angeles Gold Mine Co. v. 
 Campbell, 13 Colo. App. 1, 56 Pac. 
 246; Burleigh Bldg. Co. v. Merchant 
 Brick, etc., Co., 13 Colo. App. 455, 
 59 Pac. 83; Perkins v. Boyd, 16 Colo. 
 App. 266, 65 Pac. 350. 
 
 Kansas. — Atkinson v. Woodmansee, 
 68 Kan. 71, 74 Pac. 640, 64 L.E.A. 
 325. 
 
 Michigan. — Grand Rapids Chair 
 Co. r. Runnels, 77 Mich. 104, 43 N. 
 W. 1006. 
 
§ 480] AMOUNT, ETC. OF COMPENSATION. 855 
 
 It is true that the foregoing illustrations do not make the sub- 
 ject under discussion as clear as might be desired, but this must 
 frequently be so as to questions of this character. This difficulty 
 is thus stated by the Supreme Court of the United States : "Many 
 cases have been before this court involving the povi^er of state legis- 
 latures to impose special duties or liabilities upon individuals and 
 corporations, or classes of them, and while the principles of sep- 
 aration between those cases which have been adjudged to be within 
 the power of the legislature and those beyond its power are not 
 difficult of comprehension or statement, yet their application often 
 becomes very troublesome, especially when a case is near to the 
 dividing line. It is easy to distinguish between the full light of 
 day and the darkness of midnight, but often very difficult to de- 
 termine whether a given moment in the twilight hour is before 
 or after that in which the light predominates over the darkness. 
 The equal protection of the laws which is guaranteed by the 
 Fourteenth Amendment does not forbid classification. That has 
 been asserted in the strongest language. . . . Weither the 
 amendment — broad and comprehensive as it is — nor any other 
 amendment, was designed to interfere with the power of the state, 
 ' sometimes termed its 'police power,' to prescribe regulations to pro- 
 mote the health, peace, morals, education, and good order of the 
 people, and to legislate so as to increase the industries of the state, 
 develop its resources, and add to its wealth and prosperity. From 
 the very necessities of society, legislation of a special character, 
 having these objects in view, must often be had in certain dis- 
 tricts, such as for draining marshes and irrigating arid plains. 
 Special burdens are often necessary for general benefits — for sup- 
 plying water, preventing fires, lighting districts, cleaning streets, 
 opening parks, and many other objects. Regulations for these 
 purposes may press with more or less weight upon one than upon 
 another, but they are designed, not to impose unequal or unneces- 
 sary restrictions upon any one, but to promote, with as little in- 
 convenience as possible, the general good. Though, in many re- 
 spects, necessarily special in their character, they do not furnish 
 just ground of complaint if they operate alike upon all persons 
 and property, under the same circumstances and conditions. Class 
 legislation, discriminating against some and favoring others, is 
 prohibited; but legislation which, in carrying out a public pur- 
 
856 
 
 AMOUNT, ETC. OF COMPENSATION. [§§ 481, 482 
 
 pose, is limited in its application, if within the sphere of its opera- 
 tion it affects alike all persons similarly situated, is not within 
 the amendment." ' 
 
 § 481. Proceedings for Collection of Taxes and Assess- 
 ments. — In several jurisdictions, under statutory authority, 
 counsel fees are allowed the plaintiff in proceedings for the col- 
 lection of taxes ^^ and local assessments.*^ Statutes of this char- 
 acter have uniformly been held to be constitutional.** 
 
 § 482. In Actions on Injunction Bonds. — In many juris- 
 dictions the reasonable counsel fees incurred in procuring the dis- 
 solution of an injunction, including those for services in the appel- 
 late court,** are recoverable in an action on the injunction bond,** 
 
 9 Atchison, etc., R. Co. v. Matthews, 
 174 U. S. 96, 19 S. Ct. 609, 43 U. S. 
 (L. ed.) 909. 
 
 10 People ». Seymour, 16 Cal. 332, 
 76 Am. Dec. 521; State v. Kerr, 8 
 Mo. App. 125. See also U. S. Elec- 
 tric Power, etc., Co. v. State, 79 Md. 
 63, 28 Atl. 768. 
 
 11 United States. — Cleveland, etc., 
 R. Co. V. Porter, 210 U. S. 177, 28 
 S. Ct. 647, 52 U. S. (L. ed.) 1012. 
 
 Arizona. — English v. Territory, 11 
 Ariz. 259, 90 Pac. 601, affirming on 
 rehearing 11 Ariz. 87, 89 Pac. 501, 
 and affirming 214 U. S. 359, 29 S. 
 Ct. 658, 53 U. S. (L. ed.) 1030. 
 
 Arkansas. — School Dist. v. Board of 
 Improvement, 65 Ark. 345, 46 S. W. 
 418. 
 
 California. — Gillis v. Cleveland, 87 
 Cal. 214, 25 Pac. 351; Hughes v. 
 Alsip, 112 Cal. 587, 44 Pac. 1027; 
 Reid V. Clay, 134 Cal. 207, 66 Pac. 
 262; McCaleb v. Dreyfus, 156 
 Cal. 204, 103 Pac. 924; Engebretsen 
 V. Gay, 158 Cal. 30, Ann. Gas. ]9:2A 
 690, 109 Pac. 880, 28 L.E.A.(N.S.) 
 1062. 
 
 Indiana. — Dowell v. Talbot Paving 
 Co., 138 Ind. 675, 38 N. E. 389: 
 
 Pittsburgh, etc., E. Co. v. Fish, 158 
 Ind. 525, 63 N. E. 454; Brown v. 
 Central Bermudez Co., 162 Ind. 453, 
 69 N. E. 150; Scott v. Hayes, 162 
 Ind. 548, 70 N. E. 879; Pittsburgh, 
 etc., R. Co. V. Taber, 168 Ind. 419, 11 
 Ann. Cas. 808, 77 N. E. 741; Palmer 
 V. Nolting, 13 Ind. App. 581, 41 N. 
 E. 1045; Indiana Bond Co. v. Jame- 
 son, 24 Ind. App. 8, 56 N. E. 37; 
 Cleveland, etc., R. Co. v. Porter, 38 
 Ind. App. 226, 74 N. E. 260, 76 N. E. 
 179. 
 
 Iowa. — Tuttle v. Polk, 84 la. 12, 50 
 N. W. 38; Tuttle v. Polk, 92 la. 433, 
 60 N. W. 733. 
 
 Permsylvania. — Ashley v. Smith, 8 
 Kulp 60. 
 
 Washington. — Montesano v. Blair, 
 
 12 Wash. 188, 40 Pac. 731. 
 
 18 Engebretsen v. Gay, 158 Cal. 30, 
 Ann. Cas. 1912A 690, 109 Pac. 880, 
 28 L.R.A.(N.S.) 1062. And see the 
 eases cited in the two preceding 
 notes. 
 
 18 Miller v. Donovan, 13 Idaho 735, 
 
 13 Ann. Cas. 259, 92 Pac. 991; State 
 V. Graham, 68 W. Va. 1, 69 S. E. 301. 
 
 li Alabama. — Fidelity, etc., Co. v. 
 Walker, 158 Ala. 129, 48 So. 600; 
 
§ 482] 
 
 AMOUNT, ETC. OF COMPENSATION, 
 
 857 
 
 especially where the injunction is not the only relief sought ; " 
 but where the injunction was dissolved below, fees for the services 
 of attorneys to resist its re-establisment on appeal, there being no 
 supersedeas, cannot be recovered on the bond.'^ As a rule, only 
 one reasonable attorney fee will be allowed irrespective of the num- 
 ber of counsel engaged,''' and that only when the defendant has 
 paid it or become liable therefor.'* 
 
 Counsel fees incurred in the main action, however, cannot be 
 recovered in a suit on the injunction bond ; " but the defendant is 
 required to show only that the services rendered were performed 
 in securing the dissolution of the injunction, or were performed 
 principally and mainly for that purpose; and the fact that such 
 
 Tallasaee Falls Mfg. Co. v. Parks, 2 
 Ala. App. 278, 56 So. 588. 
 
 Kentucky. — Green v. Quisenberry, 
 133 Ky. 561, 118 S. W. 361. 
 
 Louisiana. — Brown v. Lambeth, 2 
 I^. Ann. 822; Williams v. Close, 14 
 La. Ann. 737; Betts v. Mougin, 15 
 La. Ann. 52; Rivet v. George M. Mur- 
 rell Planting, etc., Co., 121 La. 201, 
 46 So. 210, 126 Am. St. Rep. 320. 
 
 Mississippi. — Vicksburg Water- 
 works Co. V. Vicksburg, 99 Miss. 132, 
 54 So. 852, 33 L.R.A.(N.S.) 844. 
 
 Missouri. — C. H. Albers Commis- 
 sion Co. V. Spencer, 236 Mo. 608, Ann. 
 Cas. 1912D 705, 139 S. W. 321. 
 
 Jfew York. — American Exch. Nat. 
 Bank v. Goubert, 67 Misc. 602, 124 
 N. Y. S. 817, affirmed 146 App. Div. 
 875, 330 N. Y. S. 1103. 
 
 West Virginia. — State v. Medford, 
 34 W. Va. 633, 12 S. E. 864; State 
 V. Corvin, 51 W. Va. 19, 41 S. E. 211; 
 State V. Taylor, 67 W. Va. 585, 68 S. 
 E. 379 ; State v. Graham, 68 W. Va. 1, 
 69 S. E. 301. 
 
 15 Illinois. — Dempster v. Lansingh, 
 234 111. 381, 84 N. E. 1032, reversing 
 128 111. App. 388. 
 
 Kentucky. — Burgen v. Sharer, 14 
 
 B. Mon. 497; New National Turnpike 
 Co. V. Dulaney, 86 Ky. 518, 6 S. W. 
 590, 9 Ky. L. Rep. 697 ; Tyler v. Ham- 
 ilton, 108 Ky. 120, 55 S. W. 920, 
 21 Ky. L. Rep. 1516; Bartram v. 
 Ohio, etc., R. Co., 141 Ky. 100, 132 
 S. W. 188; Graham v. Rice, 110 S. 
 W. 231. 
 
 Louisiana. — Lee Lumber Co. v. 
 Hotard, 122 La. 850, 4S So. 286, 129 
 Am. St. Rep. 368. 
 
 Washington. — Collins v. Huffman, 
 48 Wash. 184, 93 Pac. 220. 
 
 West Virginia. — State v. Medford, 
 34 W. Va. 633, 12 S. E. 864; State 
 V. Corvin, 51 W. Va. 19, 41 S. E. 
 211; State v. Taylor, 67 W. Va. 
 585, 68 S. E. 379. 
 
 16 C. H. Albers Commission Co. v. 
 Spencer, 236 Mo. 608, Ann. Cas. 
 1912D 705, 139 S. W. 321. 
 
 17 Citizens' Trust, etc., Co. v. Ohio 
 Valley Tie Co., 138 Ky. 421, 128 S. 
 W. 317. 
 
 18 Reed v. New York Nat. Exch. 
 Bank, 230 111. 50, 82 N. E. 341. 
 
 19 State V. Taylor, 67 W. Va. 585, 
 68 S. E. 379. See also Collins v. 
 Huffman, 48 Wash. 184, 93 Pac. 220. 
 
858 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 [§ 483 
 
 services inured to his benefit in the main case, and resulted in a 
 final disposition of the action on the merits, cannot defeat the 
 right to recover attorney fees for services originally and primarily 
 required on account of the injunction.*" 
 
 In several jurisdictions counsel fees are not recoverable in 
 actions on injunction bonds.' 
 
 § 483. In Actions on Attachment Bonds. — Counsel fees, 
 the payment of which weve rendered necessary in procuring the 
 dissolution of a vcrongful attachment, may be recovered in several 
 jurisdictions, as a part of the damages sustained, in an action on 
 the attachment bond.* Such recovery, however, is limited to de- 
 
 an Miller v. Donovan, 13 Idaho 735, 
 13 Ann. Cas. 259, 92 Pac. 99. 
 
 1 United Siaies.— Lindeberg v. How- 
 ard, 146 Fed. 467, 8 Ann. Cas. 709, 
 77 C. C. A. 23. 
 
 Alabama. — Tallasaee Falls Mfg. 
 Co. V. Parks, 2 Ala. App. 278, 56 So. 
 588. 
 
 Georgia. — Ball v. Vason, 50 Ga. 
 264; Jones v. Rountree, 11 Ga. App. 
 181, 74 S. E. 1096. 
 
 Maine. — Barrett v. Bowers, 87 Me. 
 185, 32 Atl. 871. 
 
 North Carolina. — Midgett v. Vann, 
 158 N. C. 128, 73 S. E. 801. 
 
 Oklahoma. — Revell v. Smith, 25 
 Okla. 508, 106 Pac. 863. 
 
 Texas. — Carpenter v. Sour Lake 
 First Nat. Bank, 53 Tex. Civ. App. 
 23, 114 S. W. 904. 
 
 Virginia. — Wisecarver v. Wisecarv- 
 er, 97 Va. 452, 34 S. E. 56. 
 
 8 United States. — L. Bucki, etc.. 
 Lumber Co. v. Fidelity, etc., Co., 109 
 Fed. 393, 48 C. C. A. 436. 
 
 Alaiama. — Marshall v. Betner, 17 
 Ala. 832; Seay v. Greenwood, 21 Ala. 
 491; Roberts v. Heim, 27 Ala. 678; 
 Higgins V. Mansfield, 62 Ala. 267 ; ' 
 Dothard v. Sheid, 69 Ala. 135; Flour- 
 noy V. Lyon, 70 Ala. 308; Vandiver 
 
 V. Waller, 143 Ala. 411, 39 So. 139. 
 
 Florida. — Gonzales v. De Funiak 
 Havana Tobacco Co., 41 Fla. 471, 26 
 So. 1012. 
 
 Georgia. — Cincinnati Fourth Nat. 
 Bank v. Mayer, 96 Ga. 728, 24 S. E. 
 453. 
 
 Iowa. — ^Vorse v. Phillips, 37 la. 
 428; Selz v. Belden, 48 la. 451; 
 Schnitker v. Sehnitker, 109 la. 349, 
 80 N. W. 403. 
 
 Kansas. — Gregory Grocery Co. v. 
 Beaton, 10 Kan. App. 256, 62 Pac. 
 732, 
 
 Louisiana. — Offut v. Edwards, 9 
 Rob. 90; Phelps v. Coggeshall, 13 La. 
 Ann. 440; Brandon v. Allen, 28 La. 
 Ann. 60; Barrimore v. McFeely, 32 
 La. Ann. 1179; State Bank v. Martin, 
 52 La. Ann. 1628, 28 So. 130; South- 
 ern Grocer Co. v. Adams, 112 La. 60, 
 36 So. 226; Wall v. Hardwood Mfg. 
 Co., 127 La. 959, 54 So. 300. 
 
 Mississippi. — Buckley r. Van Diver, 
 70 Miss, 622, 12 So. 905; Dunlap v. 
 Fox, 2 So. 169. 
 
 Missouri. — State v. Beldsmeier, 56 
 Mo. 226; State v. Gage, 52 Mo. App. 
 464; State t'. Parsons, 109 Mo. App. 
 432, 84 S. W. 1019. 
 
 Montana. — ^Plymouth Gold Min. 
 
§ 484] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 859 
 
 fending against the attachment proceedings, and does not include 
 fees for defending the suit on the merits,* or for the services ren- 
 dered in prosecuting the suit for damages for the wrongful attach- 
 ment.* N^or can there be any recovery for the fees of counsel 
 whose services were unnecessary.^ 
 
 In some jurisdictions the counsel fees expended in resisting a 
 wrongful attachment are not an element of damages for which 
 the attachment plaintiff is liable,* excepting, possibly, where the 
 attachment was sued out through malice and without probable 
 cause.'' 
 
 Taxable Costs, Statutory Fees, and Expenses. 
 
 § 484. To Whom Taxable Costs and Statutory Fees Be- 
 long. — Under statutes prevailing in many jurisdictions certain 
 costs, or nominal attorney fees, are taxed in favor of the success- 
 
 Co. V. U. S. Fidelity, etc., Co., 35 
 Mont. 23, 10 Ann. Cas. 951, 88 Pae. 
 565. 
 
 Nebraska. — ^Raymond v. Green, 12 
 Neb. 215, 10 N. W. 709, 41 Am. Kep. 
 763. 
 
 Neio Meacico. — Territory v. Rinds- 
 kopf, 5 N. M. 93, 20 Pac. 180. 
 
 tiew York. — Tyng v. American 
 Surety Co., 174 N. Y. 166, 66 N. E. 
 668; Epstein v. U. S. Fidelity, etc., 
 Co., 29 Misc. 295, 60 N Y. S. 527. 
 
 S Elwell V. Seattle Scandinavian 
 Fish Co., 2 Alaska 617; Gonzales ■o. 
 De Funiak Havana Tobacco Co., 41 
 Fla. 471, 26 So. 1012; Porter v. 
 Knight, 63 la. 365, 19 N. W. 282; 
 Byford i'. Girton, 90 la. 661, 57 N. 
 W. 588; State v. Fargo, 151 Mo. 282, 
 52 S. W. 199; State v. McHale, ]6 
 Mo. App. 478; Fry v. Estes, 52 Mo. 
 App. 1; State V. Parsons, 109 Mo. 
 App. 432, 84 S. W. 1019. 
 
 4Vorse V. Phillips, 37 la. 428; 
 Offutt t. Edwards, 9 Rob. (La.) 90; 
 Roach r. Brannon, 57 Miss. 490; Cbil- 
 
 licothe First Nat. Bank v. McSwain, 
 93 S. C. 30, 75 S. E. 1106. 
 
 5 Trammell v. Ramage, 97 Ala. 666, 
 11 So. 916; New Sharon Creamery 
 Co. V. Knowlton, 132 la. 672, 108 N. 
 W. 770; Roach v. Brannon, 57 Miss. 
 490; Rambaut v. Irving Nat. Bank, 
 42 App. Div. 143, 58 N. Y. S. 1056. 
 
 sPatton V. Garrett, 37 Ark. 613; 
 Mitchell V. Mattingly, 1 Met. (Ky.) 
 237; Worthington v. Morris, 98 Ky. 
 54, 32 S. W. 269; Farmers,' etc., To- 
 bacco Warehouse Co. v. Gibbons, 107 
 Ky. 611, 55 S. W. 2; Stringfield v. 
 Hirsch, 94 Tenn. 425, 29 S. W. 609, 
 45 Am. St. Rep. 733; Craddock v. 
 Goodwin, 54 Tex. 578; Yarborough v. 
 Weaver, 6 Tex. Civ. App. 215, 25 S. 
 W. 468; Strauss v. Dundon, (Tex.) 
 27 S. W. 503. 
 
 TAbohosh V. Buck, (Ky.) 43 S. W. 
 425; Hughes v. Brooks, 36 Tex. 379; 
 McGill V. Fuller, 45 Wash. 615, 88 
 Pac. 1038. See also Juehter v. 
 Boehm, 67 Ga. 534. 
 
860 
 
 AMOUNTj ETC. OF COMPENSATIOIT. 
 
 [§ 484 
 
 ful party ; these, as a general rule, are held to belong to the client,' 
 providing, of course, that he appears by attorney. Clients ap- 
 pearing in person are not entitled to the statutory attorney fees.' 
 In some states, however, certain taxable costs and statutory fees 
 are held to be the property of the attorney of record," whose right 
 thereto cannot be affected by the employment of other counsel to 
 
 8 United States. — Celluloid 
 Co. V. Chandler, 27 Fed. 9. 
 
 Arkansas. — Bostick v. Cox, 28 Ark. 
 566. 
 
 Florida. — Girtman v. Starbuck, 48 
 Fla. 265, 5 Ann. Cas. 833, 37 So. 731. 
 
 .Illinois. — Cheney v. Ricks, 168 111. 
 533, 48 N. E. 75. 
 
 Maine. — Clay v. Moulton, 70 Me. 
 315. 
 
 Massachusetts. — Dwyer v. Ells, 208 
 Mass. 195, 21 Ann. Cas. 1042, 94 N. E. 
 286. 
 
 Minnesota. — Davis v. Swedish- 
 American Nat. Bank, 78 Minn. 408, 
 80 N. W. 953, 81 N. W. 210, 79 Am. 
 St. Rep. 400. 
 
 Missouri. — Frissell v. Haile, 18 Mo. 
 18. 
 
 'New Jersey. — Ely v. Peet, 52 N. J. 
 Eq. 734, 29 Atl. 817. 
 
 New York. — Barry v. Third Ave. R. 
 Co., 87 App. Div. 543, 84 N. Y. S. 
 830; Mcllvaine v. Steinson, 90 App. 
 Div. 77, 85 N. Y. S. 889; Earley v. 
 Whitney, 106 App. Div. 399,' 94 N. 
 Y. S. 728; Cacoia v. Isecke, 123 App. 
 Div. 779, 108 N. Y. S. 542; Wheaton 
 V. Newcombe, 48 Super. Ct. 215; 
 Ward V. Syme, 1 Code Rep.- N. S. 
 208; Martin v. Kanouse, 11 How. 
 Pr. 567, 2 Abb. Pr. 327. Prior to 
 the enactment of the Code of Civil 
 Procedure, costs were held to belong 
 to the attorney. Tunstall v. Winton, 
 31 Hun 219; In re Bailey, 31 Hun 
 608; People v. Buffalo, 7 Misc. 386, 
 
 28 N. Y. S. 158; Guliano </. Whiten- 
 ack, 9 Misc. 562, 24 Civ. Pro. 55, 1 
 N. Y. Ann. Cas. 75, 30 N. Y. S. 415; 
 Arend v. Cottle, 13 Misc. 612, 34 N. 
 Y. S. 913; Kult V. Nelson, 25 Misc. 
 238, 55 N. Y. S. 56, modifying 24 
 Misc. 20, 53 N. Y. S. 95; In re 
 Bailey, 5 Civ. Pro. 253; Kipp v. 
 Rapp, 2 How. Pr. N. S. 169, 7 Civ. 
 Pro. 385; Robbins v. Alexander, 11 
 How. Pr. 100; Adams v. Niagara, 
 etc., Co., 10 N. Y. Ann. Cas. 401, 74 
 N. Y. S. 485. 
 
 Vermont. — See Moore v. Jones, 23 
 Vt. 739, 17 Fed. Cas. No. 9,768. 
 
 Wisconsin. — ^Yorton v. Milwaukee, 
 etc., R. Co., 62 Wis. 367, 21 N. W. 516, 
 23 N. W. 401. 
 
 Canada. — Beaudin v. Montreal, 20 
 Quebec Super. Ct. 32. 
 
 9 Goodyear Dental Vulcanite Co. v. 
 Osgood, 13 Pat. Off. Gaz. 325, 2 B. & A. 
 Pat. Cas. 529, 10 Fed. Cas. No. 5,594; 
 Gorse v. Parker, 36 Fed. 840; Bacon 
 V. Combes, 32 Misc. 704, 65 N. Y. S. 
 510; Kopper v. Willis, 9 Daly (N. Y.) 
 460; Stewart v. New York C. PI., 10 
 Wend. (N.Y.) 597; People v. Steuben 
 C. PI., 12 Wend. (N. Y.) 200; Ver- 
 planck V. Mercantile Ins. Co., 1 Edw. 
 (N. Y.) 46. 
 
 10 Gillis V. Holly, 19 Ala. 663 ; Pitts- 
 burgh V. O'Brien, 239 Pa. St. 60, 86 
 Atl. 651; Delaware Ins. Co. v. Gilpin, 
 1 Bin. ( Pa. ) 501 ; Hamilton v. Hamil- ■ 
 ton, 10 Pa. Co. Ct. 255. 
 
§ 484] AMOUNT, ETC. OF COMEENSATION. 861 
 
 assist him in the performance of his duties.^' So, the client may 
 agree that the statutory fees shall go to his attorney/^ 
 
 A usage whereby statutory fees were conceded to belong to the 
 attorney will be given due weight in construing a statute which 
 leaves the question of the ownership of such fees in doubt ; ^' but 
 it was held in a federal court that a usage existing in a district 
 in which suit was brought, for the attorney of the successful party 
 to take statutory fees, is not binding upon a litigant who lives in 
 a district where such a usage does pot exist, and who has no 
 knowledge thereof.^* 
 
 An attorney who conducts his own litigation is entitled to the 
 statutory fees.*' The reason for making this distinction between 
 parties who are attorneys and those who are not, is that when the 
 party is an attorney he gives the professional time, knowledge, and 
 experience in the conducting or defense of his suit, which he would 
 otherwise have to pay another attorney for rendering. It can 
 make no difference to the defeated party, who is by law bound to 
 pay the costs of the attorney of the prevailing party, whether that 
 attorney is the party himself or another attorney employed by 
 him. He, like any other lawyer, is paid for his time and services, 
 and if he renders them in the management and trial of his own 
 cause, it may amount to as much pecuniary loss or damage to him 
 
 "People V. Buffalo, 7 Misc. 386, 28 544, 54 L. J. Ch. 151, 51 L. T. N. S. 
 
 N. Y. S. 158. 622; London Scottish Ben. Soe. v. 
 
 12 Ely V. Cooke, 28 N. Y. 365; Rob- Chorley, 13 Q. B. D. 872, 53 L. J. Q. B. 
 
 erts V. Carter, 9 Abb. Pr. (N. Y.) 366 551, 51 L. T. N. S. 100, 32 W. E. 781. 
 
 note; Harris «. Cuff, 15 Civ. Pro. 104, See Paraloe v. Foy, 2 Dowl. 181; 
 
 1 N. Y. S. 349. See also Rooney v. Jervis 6. Dewes, 4 Dowl. 764. 
 
 Second Ave. R. Co., 18 N. Y. 368; Compare Leaver «. Whalley, 2 Dowl. 
 
 Mcllvaine v. Steinson, 90 App. Div. 80. 
 
 77, 85 N. Y. S. 889; Taylor v. Long Canada. — Banks v. Burroughs, 12 
 
 Island E. Co., 25 Misc. 11, 53 N. Y. S. Quebec Super Ct. 184. 
 
 830; Roberts v. Carter, 9 Abb. Pr. New Jersey. — Flaacke v. Jersey 
 
 (N. Y.) 366 note; Robbins v. Alex- City, 33 N. J. Eq. 57; Drake v. Berry, 
 
 ander, 11 How. Pr. (N. Y.) 100. 42 N. J. L. 60. 
 
 IS Gillis V. Holly, 19 Ala. 663. New York. — Crommelin v. Dins- 
 
 14 Celluloid Mfg. Co. i;. Chandler, 27 more, 1 N. Y. City Ct. 69 ; Kopper v. 
 Fed. 9. Willis, 9 Daly 460; Willard v. Har- 
 
 15 England.— Gagy v. Brown, L. R. 1 beck, 3 Den. 260. 
 P. C. 411; In re Donaldson, 27 Ch. D. 
 
862 
 
 AMOUNT^ ETC. OP COMPENSATION. 
 
 [§ 485 
 
 as if he paid another attorney for doing it." It has been held, 
 however, that an attorney acting for himself in partition proceed- 
 ings is not entitled to the statutory fee allowed in such cases.*'' 
 The allowance of counsel fees in certain legal and equitable pro- 
 ceedings has been considered in the two preceding subdivisions of 
 this chapter.*' 
 
 § 485. Taxable Costs and Statutory Fees as Measure of 
 Attorney's Compensation. — In England the fees of legal prac- 
 titioners below the degree of counsel are fixed by statute; *' and 
 in ITew York, prior to the enactment of the Code of Civil Pro- 
 cedure, the taxable costs and statutory fees were taken to be the 
 measure of the attorney's compensation in the absence of any 
 agreement with the client to the contrary.^" 
 
 At the present time, however, attorneys are not confined to the 
 amount allowed as statutory fees or taxable costs for which the ad- 
 verse party is liable; but they may charge, and contract for, rea- 
 sonable compensation in every jurisdiction in the United States.^* 
 
 "Kopper V. Willis, 9 Daly (N. Y.) 
 460. 
 
 17 Girtman v. Starbuck, 48 Fla. 265, 
 5 Ann. Cas. 833, 37 So. 731; Cheney v. 
 Ricks, 168 111. 533, 48 N. E. 75. See 
 also supra, § 479 
 
 18 See supra, §§ 477-483. 
 
 19 See supra, § 401. See also 2 
 Halabur'y's Laws of England, pp. 403- 
 409. 
 
 20 Crotty V. McKenzie, 42 Super. Ct. 
 (N. Y.) 192; McFarland v. Crary, 8 
 Cow. (N. Y.) 253; Wallis v. Loubat, 
 2 Den. (N. Y.) 607; Keenan v. Dorf- 
 linger, 19 How. Pr. (N. Y.) 153; 
 Adams v. Fox, 27 How. Pr. (N. Y.) 
 409; Scott V. Elmendorf, 12 Johns. 
 (N. Y.) 315; In re Bleakley, 5 Paige 
 (N. Y.) 311; Adams v. Stevens, 26 
 Wend. (N. Y.) 451; Caccia v. Isecke, 
 123 App. Div. 779, 108 N. Y. S. 542. 
 
 21 United States. — In re Paschal, 10 
 Wall. 483, 19 U. S. (L. ed.) 992. 
 
 Florida. — Carter v. Bennett, 6 Fla. 
 214. 
 
 Georgia. — May v. Sibley, 69 Ga. 
 133. 
 
 Wew Hampshire. — Smith v. Davis, 
 45 N. H. 566. 
 
 New Jersey. — Strong v. Mundy, 52 
 N. J. Eq. 833, 31 Atl. 611. 
 
 New York. — Gallup v. Perue, 10 
 Hun 525 ; People v. Fulton County, 53 
 Hun 254, 6 N. Y. S. 591; Garfield v. 
 Kirk, 65 Barb. 464; Sanford v. Ruck- 
 man, 24 How. Pr. 521 ; Adams v. Fox, 
 27 How. Pr. 409; Mygatt v. Willcox, 
 1 Lans. 55; Garr v. Mairet, 1 Hilt. 
 498; Phenix v. Romer, 1 Edm. Sel. 
 Cas. 353 ; Adams v. Stevens, 26 Wend. 
 451 ; McFarland v. Crary, 8 Cow. 253 ; 
 Richardson v. Brooklyn, etc., R. Co., 
 15 Abb. Pr. 342 note; Scott v. Elmen- 
 dorf, 12 Johns. 315; In re Shanley, 57 
 Misc. 8, 107 N. Y. S. 913, modified 
 124 App. Div. 935, 109 N. Y. S. 434; 
 
§ 485], 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 863 
 
 This subject lias been more fully considered heretofore.^ There 
 may be cases, of course, wherein the taxable costs and statutory 
 fees would be reasonable compensation;^ indeed, there may be 
 instances in which such an allowance would be exorbitant.' 
 
 The allowance of taxable costs is to punish a party for putting 
 his adversary to unnecessary trouble and expense, and, in so far 
 as it serves that purpose, is commendable. The allowance of statu- 
 tory fees is intended to serve a similar purpose — that is, a sort 
 of penalty which the losing party must pay. It must be conceded, 
 however, that if statutory fees were intended to relieve the suc- 
 cessful litigant from the burden of counsel fees, they have fallen 
 
 Morey v. Schuster, 81 Misc. 515, 142 
 N. Y. S. 1054. 
 
 Ohio. — McDonald v. Page, Wright 
 121. 
 
 Pennsylvania. — Brackenridge v. Mc- 
 Farlane, 1 Add. 49; Foster v. Jack, 4 
 Watts 334. 
 
 Tennessee. — Newman v. Washing- 
 ton, 1 Mart. & Y. 81. 
 
 Virginia. — Major v. Gibson, 1 Patt. 
 & H. 48. 
 
 ISee supra, §§ 404, 405; 417-438. 
 
 z See Caccia v. Iseeke, 123 App. Div. 
 779, 108 K. Y. S. 542. 
 
 3 See Starin v. New York, 106 N. 
 Y. 82, 12 N. E. 643, wherein it ap- 
 pears that an attorney was employed 
 by the city of New York to bring over 
 fourteen thousand actions for viola- 
 tions of the excise law, and the court, 
 in denying the right of the attorney to 
 retain as compensation all costs 
 awarded in the cases, said: "The re- 
 sult arrived at by the referee ought to 
 shock the common sense of every in- 
 telligent man. The idea that a lawyer 
 of respectable character could by any 
 possibility earn over three hundred 
 thousand dollars in the space of four 
 or five years, by services of a legal 
 nature requiring no more legal ability 
 than was involved in making out a 
 
 summons and complaint and taking 
 judgments by default in these excise 
 cases, is a delusion simply, and any 
 judicial tribunal that should deter- 
 mine it to be a fact would be absurd- 
 ly at war with the truth and tlie com- 
 mon universal experience of mankind. 
 As I have said, the testimony of plain- 
 tiff's witnesses seems to have been 
 based upon the assumed law that if no 
 bargain were made, the attorney was 
 entitled to the taxable costs in every 
 case. As a mere measure of compensa- 
 tion for services as an attorney, per- 
 formed in an ordinary case or in a 
 very small number of such cases, that 
 rule may be very well and may fur- 
 nish, imder such circumstances, a fair 
 rate of compensation. But upon a 
 question of compensation for services 
 performed in an enormous number of 
 cases involving no complicated ques- 
 tions of law, and often the most 
 simple of all questions of fact, taxable 
 costs granted in each case as a meas- 
 ure of compensation would make it 
 most grossly excessive. I do not think 
 there is, in truth, any general rule of 
 law that, since the code, makes the 
 compensation of the attorney neces- 
 sarily coextensive with the taxable 
 costs in the absence of an agreement." 
 
864 
 
 AMOUNT, ETC, OF COMPENSATION. 
 
 [§ 486 
 
 far short of the mark. They are entirely too meager for that pur- 
 pose; and the same may be said of costs taxed in the nature of 
 fees. It would seem that the imposition of a reasonable attorney 
 fee on the losing party might, in some cases at least, inure to the 
 public good, but the usual statutory allowance is so inadequate 
 that it cannot be said to serve any useful purpose. 
 
 § 486. Reimbursement of Expenses. — An attorney at law 
 is authorized, in conducting his client's affairs, to incur certain 
 expenses in the client's behalf.* Such expenditures may be re- 
 covered from the client by the attorney,' or his representatives,' 
 on due proof thereof.'' There can be no such recovery, however, 
 of unauthorized expenditures,* or those made necessary by the 
 attorney's fault.^ The disbursements of an attorney, in relation 
 
 * See supra,, § 252. And as to lia- 
 bili ty for costs and expenses generally, 
 see supra, §§ 305-311. 
 
 5 Kansas. — Hazeltine v. Mahon, 8 
 Kan. App. 857 mem., 55 Pae. 467. 
 
 Michigan. — Crowell v. Truax, 94 
 Mich. 585, 54 N. W. 384. 
 
 Missouri. — Shuck v. Pfenninghau- 
 sen, 101 Mo. App. 697, 74 S. W. 381 ; 
 Young V. Lanznar, 133 Mo. App. 130, 
 112 S. W. 17. 
 
 Nebraska. — Sibley v. Rice, 58 Neb. 
 785, 79 N. W. 711. 
 
 New York. — ^Hanover v. Reynolds, 4 
 Dem. 385; Gibbs v. Prindle, 11 App. 
 Div. 470, 42 N. Y. S. 329; Speuce v. 
 Bode, 57 Misc. 611, 108 N. Y. S. 593. 
 See also Townsend v. Meyers, 142 App. 
 Div. 851, 127 N. Y. S. 451, modifying 
 123 N. Y. S. 1075. 
 
 6 Badger v. Celler, 41 App. Div. 599, 
 58 N. Y. S. 653. 
 
 TKult V. Nelson, 25 Misc. 238, 55 
 N. Y. S. 56, modifying 24 Misc. 20, 53 
 N. Y. S. 95. 
 
 8 Illinois. — ^Hughes v. Zeigler, 69 
 111. 38. 
 
 Iowa. — Forbes v. Chicago, etc., R. 
 Co., 150 la. 177, Ann. Cas. 1912D 311, 
 129 N. W. 810. 
 
 Michigan. — Gray v. Emmons, 7 
 Mich. 533. 
 
 New York. — People v. Loclcwood, 9 
 Daly 68; Townsend v. Meyers, 142 
 App. Div. 851, 127 N. Y. S. 451, modi- 
 fying 123 N. Y. S. 1075. 
 
 Where attorneys contracted to ac- 
 cept a specified share of the recovery 
 as their fee, which was to include 
 services in the supreme court, tliey 
 were not entitled to railway fares and 
 hotel bills incurred in attending the 
 appellate courts, since the contract 
 contemplated that the stipulated fee 
 should cover all services necessarily 
 incidental to the proper conduct of the 
 case and the attendance of the attor- 
 neys to that end. Sanders v. Riddick, 
 (Tenn.) 156 S. W. 464. 
 
 9 An attorney cannot recover from 
 his client a sum paid by the attorney 
 as costs imposed as a condition to 
 amend the complaint so negligently 
 drawn by the attorney that it did not 
 state a cause of action. Senftner v. 
 
§ 486] 
 
 AMOUNT, ETC. OF COMPENSATION. 
 
 865 
 
 to the demands and actions belonging to two jointly, may be col- 
 lected of the two, though his employment, on the request to make 
 such disbursements, was but by one." 
 
 By statute in New York, counsel assigned to the defense of a 
 capital case may be reimbursed for personal and incidental ex- 
 penses.'* 
 
 Kleinhana, 80 Misc. 519, 141 N. Y. S. 
 533. 
 
 10 Davis V. Downer, 10 Vt. 529. 
 
 "Code Crim. Pro., § 308. Ex- 
 penses of insanity specialists who tes- 
 tified at trial, and expenses of con- 
 Attys. at L. Vol. II.— 55. 
 
 ferences with them before trial for a 
 copy of the testimony at the coroner's 
 inquest and for the attendance of 
 witnesses before trial, are not allow- 
 able. People V. Prendergast, 157 App. 
 Div. 486, 142 N. Y. S. 611. 
 
CHAPTEE XXII. 
 
 ACTIONS TO RECOVER COMPENSATION. 
 
 Right of Action, 
 
 487. Generally. 
 
 488. When Right of Action Accrues. 
 
 489. As Affected by Nature of Services. 
 
 Form of Action — Parties. 
 
 490. Action at Law. 
 
 491. Suit in Equity. 
 
 492. Summary Proceedings. 
 
 493. Parties. 
 
 Pleading. 
 
 494. Declaring on Express Contract. 
 
 495. Declaring on Quantum Meruit. 
 
 496. Alleging Performance. 
 
 497. Alleging Indebtedness. 
 
 498. Alleging Plaintiff's Qualification to Practice Law. 
 
 499. Defensive Pleading. 
 
 Allegations and Proof. 
 
 500. Generally. 
 
 Evidence Generally, 
 
 501. Burden of Proof. 
 
 502. Recbrd as Evidence. 
 
 503. Right of Plaintiff to Practice as Attorney at Law. 
 
 504. Declarations and Admissions. 
 
 505. Bill Rendered as Evidence. 
 
 506. Weight of Evidence. 
 
 Proof of Employment, 
 
 507. Necessity of Proving Employment, . 
 
 508. Mode of Proof. 
 
 866 
 
ACTIONS TO EECOVEE COMPENSATION. 86'i 
 
 I 509. What Constitutes Employment Generally. 
 
 510. Authority to Employ Generally. 
 
 511. Employment by Representative Persons. 
 
 512. Employment by Corporations and Stoclcholders Thereof. 
 
 513. Employment by One of Several Parties as Creating Joint Liability.. 
 
 514. Employment by One of Several Heirs or Legatees. 
 
 515. Employment by Principal or Surety as Creating Joint Liability. 
 
 516. Employment of Associate Counsel. 
 
 517. Ratification of Unauthorized Employment. 
 
 518. Acceptance of Benefits of Attorney's Services. 
 
 519. Sufficiency of Acceptance of Beneficial Services. 
 
 520. Employment by One Spouse as Binding the Other Generally, 
 
 521. In Actions for Divorce. 
 
 522. In Other Matrimonial Actions. 
 
 Proof of Performance. 
 
 523. Necessity of Proving Performance. 
 
 524. Sufficiency of Proof. 
 
 525. Performance without Litigation. 
 
 526. Performance by Associated Attorneys and Partners, 
 
 527. Performance by Substitute. 
 
 528. Purpose Accomplished without Attorney's Aid. 
 
 Proof of Value of Services. 
 
 529. In GeneraL 
 
 530. Value of Retaining Fee. 
 
 531. In Actions upon Express Contracts. 
 
 532. Burden of Proving Fairness. 
 
 533. In Actions on Implied Contracts Generally. 
 
 534. Attorney's Ability, Experience, and Standing. 
 
 535. Nature and Extent of Services. 
 
 536. Importance of Litigation. 
 
 537. Amount in Controversy. 
 
 538. Result. 
 
 539. Benefit to Client. 
 
 540. Client's Wealth or Poverty. 
 
 541. Usual and Customary Compensation. 
 
 542. Offer from Adverse Party. 
 
 543. Where Services are Rendered in Foreign State. 
 
 544. Fees Fixed by Court. 
 
 Expert Testimony. 
 
 545. Necessity of Expert Testimony. 
 
 546. Admissibility of Expert Testimony. 
 
868 ACTIONS TO BECOVEE COMPENSATION. [§ 487 
 
 § 547. Qualification of Expert Witness. 
 
 548. Knowledge of Charges in Particular Locality. 
 
 549. Basis of Opinion. 
 
 550. Weight of Expert Evidence. 
 
 551. Generally. 
 
 552. Defense Must Be Meritorious. 
 
 553. Negligence or Ignorance. 
 
 554. When Negligence or Ignorance Unavailable as Defense. 
 
 555. Fraud or Bad Faith. 
 
 556. When Fraud or Bad Faith Unavailable as Defense. 
 
 557. Refusal to Pay over Money Collected. 
 
 558. Abandonment of Cause by Attorney. 
 
 559. Gratuitous Service. 
 
 560. Payment. 
 
 561. Payment of Fees to Other Counsel. 
 
 562. Solicitation of Business. 
 
 563. Statute of Limitations Generally. 
 
 564. Where Professional Relationship Has Been Prematurely Terminated. 
 
 Suhmitting Case to Jury — Recovery — Review. 
 
 565. Submitting Case to Jury. 
 
 566. Recovery Generally. 
 667. Recovery of Interest. 
 568. Review. 
 
 Recovery Back from Attorney — Penalties. 
 
 569. When Fees May Be Recovered Back. 
 
 570. Recovery Back Denied. 
 
 571. Recovery of Penalties for Taking Unlawful Fees. 
 
 Right of Action. 
 
 § 487. Generally. — Contrary to the English practice/ at- 
 torneys may sue for their compensation in all jurisdictions in the 
 
 iSee supra, § 401. See also Thorn- 106 E. C. L. 677, wherein the earlier 
 hill V. Evans, 2 Atk. (Eng.) 330; cases are reviewed. 
 Kennedy v. Broun, 13 C. B. N. S. 677, 
 
487] 
 
 ACTIONS TO RECOVEE COMPENSATION. 
 
 869 
 
 United States,* either on express ' or implied * contracts of em- 
 ployment. A similar rule prevails in some of the Canadian prov- 
 inces.* In New Jersey, however, counsel fees can only be recov- 
 ered under an express agreement to pay them; although there 
 
 » United States. — In re Paschal, 10 
 Wall. 483, 19 U. S. (L. ed.) 992; Law 
 V. Ewell, 2 Cranch 144, 15 Fed. Cas. 
 No. 8,127; Mowat v. Brown, 19 Fed. 
 87. 
 
 Alabama. — ^Coopwood v. Wallace, 
 12 Ala. 790. 
 
 Arkansas. — Wilcox v. Boothe, 19 
 Ark. 684; PuUiam v. Booth, 21 Ark. 
 421; Fenno v. English, 22 Ark. 170; 
 Weil V. Fineran, 78 Ark. 87, 93 S. W. 
 568; Lane, etc., Co. v. Taylor, 80 Ark. 
 469, 97 S. W. 441, 7 L.R.A.(N.S.) 
 924. 
 
 California. — ^Cahill v. Baird, 138 
 Cal. 691, 72 Pac. 342, reversing 70 Pac. 
 1061. 
 
 Colorado. — Hazeltine v. Brockway, 
 26 Colo. 291, 57 Pac. 1077. 
 
 Connectiout. — Pierce v. Norton, 82 
 Conn. 441, 74 Atl. 686. 
 
 Delaware. — Rogers v. Randal, 2 
 Harr. 499 ; Bayard U; McLane, 3 Harr. 
 139. 
 
 Georgia. — Wataon v. Columbia Min. 
 Co., 118 Ga. 603, 45 S. E. 460. 
 
 Illvnois.Stovy v. Hull, 143 111. 506, 
 32 N. E. 265; Union, etc., Co. v. 
 Tenney, 102 111. App. 95, affirmed 200 
 111. 349, 65 N. E. 688; Scott v. Morris, 
 131 111. App. 605. 
 
 Indiana. — Blizzard v. Applegate, 77 
 Ind. 516; Hatfield v. Chenowith, 24 
 Ind. App. 343, 56 N. E. 51. 
 
 Louisiana. — Livingston v. Cornell, 
 2 Mart. 0. S. 281. 
 
 Maryland. — Calvert v. Coxe, 1 Gill 
 95. 
 
 Missouri. — Shuck v. Pfenning- 
 hausen, 101 Mo. App. 697, 74 S. W. 
 381. 
 
 Nebraska. — Marshall v. Piggott, 78 
 Neb. 722, 111 N. W. 592. 
 
 New Jersey. — Schomp v. Schenck, 
 40 N. J. L. 195, 29 Am. Rep. 219. 
 
 New York. — Stevens v. Adams, 23 
 Wend. 57 ; Shell v. Muir, 51 Hun 644 
 mem., 4 N. Y. S. 272; Flannery v. 
 Geiger, 46 Misc. 619, 92 N. Y. S. 785 ; 
 Spencer v. Busch, 50 Misc. 284, 98 
 N. Y. S. 690; Yuells v. Hyman, 84 
 N. Y. S. 460. 
 
 Pennsylvania. — Foster v. Jack, 4 
 Watts 334, overruling Mooney v. 
 Lloyd, 5 S. & R. 412 ; Seybert v. Salem 
 Twp., 22 Pa. Super. Ct. 459. 
 
 Tennessee. — Newman V. Washing- 
 ton, Mart. & Y. 79. 
 
 Texas. — Campbell v. Dennis, 2 Tex. 
 Unrep. Cas. 459. 
 
 Utah. — Croco v. Oregon Short Line 
 R. Co., 18 Utah 321, 54 Pac. 985; 
 Potter V. Ajax Min. Co., 22 Utah 273, 
 61 Pac. 999. 
 
 3 See supra, §§ 404, 417; 439-446. 
 
 * See supra, §§ 404, 447-449. 
 
 5 See supra, § 403. See also Reg. v. 
 Doutre, 9 App. Cas. (Eng.) 745; 
 Paradis v. Bosse, 21 Can. Sup. Ct. 
 419 (both of which cases were decided 
 under the laws of the province of 
 Quebec) ; Armour v. Kilmer, 28 Ont. 
 618 ; McDougall v. Campbell, 41 U. C. 
 Q. B. 332 (decided under the laws of 
 Ontario). And see Mowat v. Brown, 
 19 Fed. 87. 
 
'870 ACTIONS TO EECOVEE COMPENSATION. [§ 488 
 
 may be a recovery of compensation for services rendered other- 
 vyise than in the capacity of counsel on an implied promise.® 
 
 The right to sue for compensation is not affected by the fact 
 that the attorney has, or is entitled to, a lien therefor.' 
 
 § 488. When Right of Action Accrues. — The right of an 
 attorney to sue for compensation for his services accrues at the 
 termination of the suit or other legal business in which he was 
 employed,' or when, without fault on his part, the contract of 
 employment has been otherwise ended.* Thus, an attorney who 
 is employed to collect certain judgments cannot exact his fees un- 
 til the judgments are collected, or their collection is shown to be 
 impossible.^" The fact that suit was prematurely brought, how- 
 ever, does not bar a subsequent action. ^^ But because an attorney 
 who is retained generally to conduct legal proceedings enters into 
 a contract to conduct them to their termination, it does not follow 
 that he is not entitled to compensation from time to time for the 
 services rendered, in the absence of an agreement to the contrary ; '* 
 and a recovery may certainly be had under a contract whereby 
 the attorney was to be paid all, or some part, of his compensation 
 
 6 See supra, § 405. See also Schomp Y. S. 1076; Adams v. Ft. Plain Bank, 
 
 V. Schenck, 40 N. J. L. 195, 29 Am. 23 How. Pr. 45. 
 
 Eep. 219; Hopper v. Ludlum, 41 N. J. Pennsylvania. — Mattern v. McDiv- 
 
 L. 182; McCrea v. Stierman, 76 N. J. ett, 113 Pa. St. 402, 6 Atl. 83. 
 
 L. 394, 69 Atl. 1008. 9 Hazeltine v. Brockway, 26 Colo. 
 
 ■? Scott V. Morris, 131 HI. App. 605; 291, 57 Pac. 1077; Wataon v. Colum- 
 
 Flannery v. Geiger, 46 Mise. 619, 92 bia Min. Co., 118 Ga. 603, 45 S. E. 
 
 N. y. S. 785. 460; Henry v. Vance, 111 Ky. 72, 63 
 
 » Arkansas. — Fenno v. English, 22 S. W. 273; Copp v. Colorado Coal, 
 
 Ark. 170. etc., Co., 33 Misc. 773, 67 N. Y. S. 970, 
 
 Georgia. — Fry v. Lofton, 45 Ga. 171. afflrmng 32 Misc. 241, 65 N. Y. S. 
 
 Louisiana. — State v. Atchafalaya 789; Yuells v. Hyman, 84 N. Y. S. 
 
 R., etc., Co., 5 Rob. 66. 460. See also supra, §§ 450-460; and 
 
 Massachusetts. — Hubbard v. Wood- see infra, § 523. 
 
 bury, 7 Allen 422. lo Succession of Zenon, 34 La. Ann. 
 
 Mississippi. — Holly Springs v. Man- 1187. 
 
 ning, 55 Miss. 380. 11 Porter v. Euckman, 38 N. Y. 210. 
 
 New York. — Porter v. Ruckman, 38 12 Sessions v. Palmeter, 75 Hun 268, 
 
 N. Y. 210; Bathgate v. Haskin, 59 N. 26 N. Y. S. 1076. See also Tenney v. 
 
 Y. 533, reversing 5 Daly 361; Ses- Berger, 93 N. Y. 524, 45 Am. Rep. 
 
 sions V. Palmeter, 75 Hun 268, 26 N. 263. 
 
§ 489] ACTIONS TO EEOOVEE COMPENSATION. ' 871 
 
 prior to the conclusion of the business undertaken.*' So, an 
 attorney who was employed, in anticipation of litigation, to de- 
 fend any and all suits that might be brought against his client, 
 and who appeared in and defended some of such suits, may insti- 
 tute proceedings for the recovery of his compensation at the 
 termination of each action wherein he appeared.** A demand 
 upon the client for payment, prior to bringing suit, is not neces- 
 sary." Under a New Jersey statute an attorney cannot commence 
 or maintain suit against a client for any fees, charges, or dis- 
 bursements, until he shall have delivered to such client a copy of a 
 taxed bill thereof." 
 
 § 489. As Affected by Nature of Services. — An attorney 
 may, of course, recover compensation for all professional serv- 
 ices. Sometimes, however, attorneys are so employed that it is 
 difficult to determine wherein they are, or are not, acting profes- 
 sionally." It has been held that an attorney may bring suit for the 
 recovery of a retaining fee,*' or for compensation rendered in the 
 procurement of a settlement of pending litigation, *° or for watch- 
 ing the progress of litigation,^" or for prosecuting claims against 
 
 13 Wells V. Gilpin, 19 Colo. 305, 35 items, retain the amount of his rea- 
 
 Pac. 545. sonable fees, charges, and disburse- 
 
 liOsborn v. Hopkins, 160 Cal. 501, ments from moneys collected by him 
 
 Ann. Cas. 1913A 413, 117 Pac. 519. for his client in the same suit. And 
 
 16 Gibbs V. Davis, 11 Ore. 288, 3 see supra, § 476. 
 
 Pac. 677. See also Ohio, etc., R. Co. 17 Kelley v. Kichardson, 69 Mich. 
 
 V. Smith, 5 Ind. App. 36, 31 N. E. 371; 430, 37 N. W. 514. 
 
 Bruyn v. Comstock, 56 Barb. (N. Y.) 18 Stevens r. Monges, 1 Har. (Del.) 
 
 9; Foster v. Nevpbrough, 66 Barb. (N. 127; Union Surety & Guaranty Co. r. 
 
 Y.) 645; Gleason v. Clark, 9 Cow. Tenney, 102 111. App. 95, ajjlrmed 200 
 
 (K Y.) 57; Davis v. Farvi^ell, 80 Vt. 111. 349, 65 N. E. 688; Brackenridge 
 
 166, 67 Atl. 129. v. McFarlane, Add. (Pa.) 49; Gray v. 
 
 16 Strong V. Mundy, 52 N. J. Eq. Brackenridge, 2 P. & W. (Pa.) 75, 
 
 833, 31 Atl. 611 ; Truitt v. Darnell, 65 overruling Mooney v. Lloyd, 5 S. & 
 N. J. Eq. 221, 55 Atl. 692; McCrea v. K. (Pa.) 412; Foster v. Jack, 4 Watts 
 Stierman, 76 N. J. L. 394, 69 Atl. (Pa.) 334. See also, § 406. 
 
 1008. 19 Stoutenburgh v. Fleer, 87 N. Y. S. 
 
 In Strong v. Mundy, 52 N. J. Eq. 504. 
 
 834, 31 Atl. 611, it was held that an 20 Warren v. Sheehan, 156 Mich. 
 attorney might, without taxation of 432, 120 N. W. 810. 
 
872 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 490 
 
 the govemment/ or procuring a pardon for one convicted of 
 crime.* So, it lias been held that compensation may be recovered 
 for services rendered by attorneys in leasing certain lands,' or 
 for procuring grants of municipal franchises.* 
 
 A suit cannot be maintained, hovyever, on contracts of employ- 
 ment "which are void for illegality,* although v?here services have 
 been performed under such a contract there may, in some in- 
 stances, be a recovery of the value thereof on a quantum, meruit.^ 
 
 Form of Action — Parties. 
 
 § 490. Action at Law. — While an attorney at law may re- 
 tain his fees out of money secured through his services, which 
 comes into his possession,' in other cases some legal proceeding 
 is necessary.* The usual remedy for the recovery of compensa- 
 tion is by an action at law,' either in assumpsit, or its equivalent 
 under modem practice acts.^" This is also true as to the recovery 
 
 1 Wright V. Tebbitts, 91 U. S. 252, 
 23 U. S. (L. ed.) 320; Stanton v. 
 Embrey, 93 U. S. 548, 23 U. S. 
 (L. ed.) 983; Taylor v. Bemiss, 110 
 U. S. 42, 3 S. Ct. 441, 28 U. S. (L. ed.) 
 64. See also supra, § 434. 
 
 SMoyer v. Cantieny, 41 Minn. 242, 
 42 N. W. 1060; Stroemer v. Van 
 Orsdel, 74 Neb. 132, 103 N. W. 1053, 
 121 Am. St. Rep. 713, 4 L.R.A.(N.S.) 
 212, affirmed on rehearing 74 Neb. 
 143, 107 N. W. 125, 121 Am. St. Rep. 
 722, 4L.R.A.(N.S.) 218. 
 
 3 Began V. Wright, 22 Misc. 94, 48 
 N. Y. S. 546. 
 
 * Breen v. Union R. Co., 9 App. Div. 
 122, 75 N. Y. St. Rep. 615, 41 N. Y. S. 
 164. 
 
 5 See supra, §§ 433-437. 
 
 8 See supra, § 438. 
 
 '' As to retaining compensation from 
 funds in hand, see supra, § 476. 
 
 8 In re Strike, 1 Bland (Md.) 57; 
 Seybert v. Salem Tp., 22 Pa. Super. 
 Ct. 459. 
 
 9 United States. — Law v. Ewell, 2 
 Cranoh C. C. 144, 15 Fed. Cas. No. 
 8,127. 
 
 Mississippi. — ^Pugh v. Dorsey, 8 
 Smedes & M. 379. 
 
 Missouri. — Harrison v. Murphy, 
 106 Mo. App. 465, 80 S. W. 724; 
 Smith V. Wright, 153 Mo. App. 719, 
 134 S. W. 683. 
 
 New York. — ^Lynch v. Willard, 6 
 Johns. Ch. 342 ; Lorillard v. Robinson, 
 2 Paige 276; Wilde v. Joel, 6 Duer 
 671, 15 How. Pr. 320; Holmes v. Bell, 
 139 App. Div. 455, 124 N. Y. S. 301, 
 affirmed 200 N. Y. 586, 94 N. E. 1094. 
 
 10 United States. — Law v. Ewell, 2 
 Cranoh C. C. 144, 15 Fed. Cas. No. 
 8,127. 
 
 Alabama. — Humes v. Decatur Land 
 Improvement & Furnace Co., 98 Ala. 
 461, 13 So. 368; White v. Tolliver, 110 
 Ala. 300, 20 So. 97. 
 
 Arkansas. — Wilcox v. Boothe, 19 
 Ark. 684. 
 
 Delaware. — Stevens v. Monges, 1 
 
§ 491] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 873 
 
 of compensation earned as associate cotmsel, whether the action is 
 brought against the client or his attorney of record." 
 
 § 491. Suit in Equity. — Ordinarily an attorney, having an 
 adequate remedy at law, cannot proceed in a court of equity for 
 the recovery of compensation due him by a client. ^^ Thus where 
 two attorneys, not partners, were employed to prosecute several 
 suits, it was held that a bill for an accounting would not lie at the 
 suit of one of them against the other, even though he had mis- 
 represented the amount of fees received from the client, and 
 fraudulently retained more than his share thereof. ^^ 
 
 Equitable relief may be had by attorneys, however, where such 
 relief would be available under similar circumstances to other 
 litigants. Thus it has been held that an attorney may proceed 
 in equity against one who becomes possessed of a fund out of 
 
 Har. 127; Rogers v. Randel, 2 Har. 
 499. 
 
 District of Columbia. — Gilbert v. 
 Fay, 4 App. Cas. 38. 
 
 Illinois. — Gorrell v. Payson, 170 111. 
 213, 48 N. E. 433; People's Casualty 
 Claim Adjustment Co. v. Darrow, 172 
 111. 62, 49 N. E. 1005, affirming 70 
 111. App. 22; Funic v. Mohr, 185 111. 
 395, 57 N. E. 2 ; Meyer v. McCumber, 
 75 111. App. 119; Sexton v. Bradley, 
 110 111. App. 495. 
 
 Indiana. — Union Mut. Life Ins. Go. 
 V. Buchanan, 100 Ind. 63. 
 
 Maine. — Matthews v. Williams Mfg. 
 Co., 98 Me. 234, 56 Atl. 759. 
 
 Maryland. — Calvert v. Coxe, 1 Gill 
 95. 
 
 MassacJiMsetts. — Aldrich v. Brown, 
 103 Mass. 527. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14; Lungerhausen v. Critten- 
 den, 103 Mich. 173, 61 N. W. 270; 
 Dawson v. Peterson, 110 Mich. 431, 68 
 N. W. 246 ; Smedley v. Grand Haven, 
 125 Mich. 424, 84 N. W. 626. 
 
 New York. — Stockholm v. Eobbins, 
 
 24 Wend. 109; Flannery v. Geiger, 46 
 Misc. 619, 92 N. Y. S. 785. 
 
 Oklahoma. — Mellon v. Fulton, 22 
 Okla. 636, 98 Pac. 911, 19 L.E.A. 
 (N.S.) 960. 
 
 Pennsylvania.— Foster v. Jack, 4 
 Watts 334; Thompson v. Boyle, 85 
 Pa. St. 477; Thompson v. Minor, 35 
 Leg. Int. 244. 
 
 Vermont. — Bell v.. McLeran, 3 Vt. 
 185. 
 
 Virginia. — Major's Ex'r v. Gibson, 
 1 Pat. & H. 48. 
 
 11 Harrison v. Murphy, 106 Mo. 
 App. 465, SO S. W. 724; Brown v. New 
 York, 9 Hun (N. Y.) 587; Willis v. 
 Carford, 38 Ore. 522, 63 Pac. 985, 64 
 Pac. 866, 53 L.E..A. 904. See also 
 supra, §§ 210; 407-409. 
 
 12 In re Gillaspie, 190 Fed. 88; 
 Smith V. Wright, 153 Mo. App. 719, 
 134 S. W. 683; Miller v. Newell, 20 
 S. C. 123, 47 Am. Hep. 833. And see 
 the preceding section. 
 
 13 Willis V. Carford, 38 Ore. 522, 63 
 Pac. 985, 64 Pac. 866, 53 L.R.A. 904. 
 
874 ACTIONS TO EEOOVEB COMPENSATION. [§ 492 
 
 which his compensation is to come.** So, a suit in equity may be 
 maintained by an attorney to enforce an equitable assignment of 
 an interest in the subject-matter of the litigation which was made 
 to him as compensation for his services.** In Tennessee the courts 
 of chancery have authority, either at the instance of the suitor, 
 or, in some cases, at the instance of counsel, to ascertain the rea- 
 sonable compensation of counsel for professional services in pend- 
 ing cases.** Accountings between law partners,*' and between 
 attorney and client, have been considered heretofore.*' 
 
 § 492. Summary Proceedings. — It is well settled that an 
 attorney's claim against his client for compensation cannot be 
 determined summarily.*^ 'Nov will summary proceedings lie for 
 the recovery of compensation as between several counsel ; *" thus 
 where the original attorney of record was discharged, and the suit 
 was prosecuted to judgment by another, the attorney who was 
 discharged cannot, by a rule to show cause on the plaintiff, secure 
 payment of his fees out of the moneys in the hands of the attor- 
 
 14 Harrison v. Murphy, 106 Mo. Nehraska. — Williams v. Miles, 63 
 
 App. 465, 80 S. W. 724. Compare Neb. 851, 89 N. W. 455. 
 
 Willis V. Carford, 38 Ore. 522, 63 New York. — Dimick v. Cooley, 3 
 
 Pac. 985, 64 Pac. 866, 53 L.R.A. 904. Civ. Proc. 141 ; In re Halsey, 13 Abb. 
 
 iSDeering v. Schreyer, 171 N. Y. N. C. 353; Hoes v. Halsey, 2 Dem. 
 
 451, 64 N. E. 179, modifying 58 App. 577 ; Sohriever v. Brooklyn Heights K. 
 
 Div. 322, 68 N. Y. S. 1015; Bennett v. Co., 49 App. Div. 629, 63 N. Y. S. 217, 
 
 Donovan, 83 App. Div. 95, 82 2Sr. Y. S. modifying 30 Misc. 145, 30 Civ. Proc. 
 
 506. See also supra, §§ 425, 426. 67, 61 N. Y. S. 644, 890. See also 
 
 16 Yourie i;. Nelson, 1 Tenn. Ch. 614. Goddard v. Stiles, 90 N. Y. 199. 
 
 17 See supra, § 475. Tennessee. — Ex parte Smithson, 108 
 
 18 See supra, § 344. Tenn. 442, 67 S. W. 864. 
 
 19 Georgia. — Keefer v. Keefer, 78 Washington. — McRea v. Warehime, 
 S. E. 462. 49 Wash. 194, 94 Pac. 924. 
 
 Kentucky. — Foot v. Culbertson, 8 20 Baldwin v. Foss, 16 Neb. 80, 19 
 
 Ky. L. Rep. 62 (abstract) . Compare N. W. 496, 16 Neb. 298, 20 N. W. 348; 
 
 Gordon v. Gordon, 6 Ky. L. Rep. 439 Taylor r. Long Island R. Co., 38 App. 
 
 (abstract). Div. 595, 6 N. Y. Ann. Cas. 341, 56 
 
 Louisiana. — See Nolan r. Taylor, 12 N. Y. S. 665 ; Dailey v. Wellbrock, 65 
 
 La. Ann. 201. App. Div. 523, 72 N. Y. S. 848. 
 
 Maryland. — In re Strike, 1 Bland 
 57. 
 
§ 493] ACTIONS TO EECOVEE COMPENSATION. 875 
 
 ney who tried the case.* Summary proceedings as between at- 
 torney and client have been considered heretofore.* 
 
 § 493. Parties. — Several attorneys who jointly represent the 
 same client may sue as joint plaintiffs for their compensation.* 
 So, several attorneys may be joined as defendants in an action 
 brought by associate counsel, retained by them, for his compen- 
 sation.* Where, however, several counsel are retained under sep- 
 arate and distinct contracts of employment, they should bring suit 
 individually. 
 
 Services rendered by a law firm must be sued for in the firm 
 name.* The fijm may also maintain an action to recover for the 
 services of any of its members.® But an attorney may sue in his 
 own name for services rendered by him in his individual capacity, 
 even though, in fact, he is a member of a law firm,'' and his part- 
 ner has assisted him in the performance of the services for which 
 suit is brought.' And where, after the dissolution of a law part- 
 nership, a suit is brought by one of the former partners, in his 
 own name, for services rendered by him in connection with a 
 matter wherein his firm had been retained, it may be inferred 
 that it was agreed among the partners, on their dissolution, that 
 the plaintiff should attend to the business and receive the com- 
 pensation for which the suit was brought.' 
 
 As a rule, only the client need be made a party defendant.'" 
 
 1 Seybert v. Salem Tp., 22 Pa. Super. t Webb v. Treseony, 76 Cal. 621, 18 
 Ct. 459. Pac. 796; Moahier v. Frost, 110 111. 
 
 2 See supra, §§ 354-364. 206 ; Jamea T. Hair Co. v. Thorne, 27 
 
 3 Starrett v. Gault, 62 111. App. 209 
 * Harrison v. Murphy, 106 Mo. App 
 
 465, 80 S. W. 724. 
 
 5 Shirts V. Eooker, 21 Ind. App, 
 420, 52 N. E. 629; Dennis v. First Nat, 
 Bank, 33 Wash. 161, 73 Pac. 1125. 
 
 'French v. Cunningham, 149 Ind 
 632, 49 N. E. 797; Warner v. Gris^ 
 
 111. App. 502; Piatt V. Halen, 23 
 Wend. (N. Y.) 456; McCabe v. Good- 
 fellow, 21 Civ. Proc. 66, 15 N. Y. S. 
 377. 
 
 8 Oatrander v. Capitol Inveatraent 
 Bldg. & Loan Assoc, 130 Mich. 312, 
 89 N. W. 964. 
 
 9 Anderson v. Tarpley, 6 Smedes & 
 wold, 8 Wend. (N. Y.) 665; Maynard M. (Miss.) 507. 
 
 V. Brigga, 26 Vt. 94 ; Dennis v. First l" Filmore v. Wella, 10 Colo. 228, 
 
 Nat. Bank, 23 Wash. 161, 73 Pac. 15 Pac. 343, 3 Am. St. Rep. 567; 
 1125; Thorp i'. Ramsey, 51 Wash. 630, Adams v. Fox, 40 Barb. (N. Y.) 442. 
 99 Pac. 584. 
 
876 ACTIONS TO EECOVEE COMPENSATION. [§ 494 
 
 Where, however, a third person becomes liable for the attorney's 
 compensation, then he, and not the client, may be sued,^' though 
 in some instances the client and such third person may be joined 
 as defendants.** 
 
 Pleading, 
 
 § 494. Declaring on Express Contract. — Where an attor- 
 ney's claim for compensation is based on an open and subsisting 
 valid contract, it must be declared upon in an action brought by 
 him for the recovery of the amount due thereunder.*' In such 
 cases the contract cannot be abandoned, and a recovery sought on 
 a qiuintium meruit }* As a general rule, it will be sufficient to 
 incorporate the contract in the declaration or complaint, show the 
 performance of services thereunder, and allege the indebtedness, 
 and the failure of the defendant to pay the same." 
 
 But where the contract relates to a specific matter, a recovery 
 cannot be had thereunder for other services which were not within 
 the scope of the contract.** So where, notwithstanding the exist- 
 ence of a contract for compensation, the relation of attorney and 
 client has been prematurely severed, a declaration upon the con- 
 tract as if it had been constructively performed is not good; and 
 this is also true where the duties undertaken by the attorney have 
 been partially performed and, in consequence thereof, the attorney 
 is entitled to recover upon a quantum meruit." 
 
 11 Christie v. Sawyer, 44 N. H. 298. 18 Bartlett v. Odd-Fellows' Sav. 
 
 12 Adams v. Fox, 40 N". Y. 577. See Bank, 79 Cal. 218, 21 Pae. 743, 12 
 also supra, § 460. Am. St. Hep. 139. See also Smiley v. 
 
 '^^ Arkansas. — Weil v. Fineran, 78 Meir, 47 Ind. 559 (suit on a note 
 
 Ark. 87, 93 S. W. 568. given for counsel fees). 
 
 Georgia.— 'B-aW v. St. Johns, 39 Ga. le Wells v. Haynes, 101 Ga. 841, 28 
 
 78. S. E. 968. 
 
 /JJmois.— Wilson v. Hart, 129 111. l? Henry v. Vance, 111 Ky. 72, 63 
 
 App. 329. S. W. 273. 
 
 Michigan. — Cavanaugh v. Robinson, As to the right of an attorney to 
 
 138 Mich. 554, 101 N. W. 824. recover where the contract of employ- 
 
 New York. — McDonald v. De Vito, ment has been prematurely termi- 
 
 118 App. Div. 566, 103 N. Y. S. 508. nated, see supra, §§ 450-460. 
 
 1* Johnson v. Clarke, 22 Ga. 541; 
 White V. Wright, 16 Mo. App. 551. 
 
§ 495] AOTIONO TO EECOVEE COMPENSATION. 877 
 
 § 495. Declaring on Quantum Meruit. — Where the amount 
 of compensation claimed is not fixed by an agreement between 
 the parties, or where, even though there has been such an agree- 
 ment, it was so terminated by the client as to entitle the attorney 
 to reasonable compensation for the services performed thereunder, 
 the attorney must declare on a qiumtum meruit, and it is essen- 
 tial that he should allege all the facts necessary to warrant a re- 
 covery.^' A statement of the pleader's conclusions is not enough.'® 
 
 As a general rule, it will be sufficient to allege the employ- 
 ment, the performance of the services undertaken or some suffi- 
 cient excuse for nonperformance, the value of the services ren- 
 dered, and the defendant's indebtedness. In some jurisdictions 
 the common counts in assumpsit are sufficient for this purpose.^" 
 But where fraud is charged on the part of the client, the pleader 
 should be particularly careful in his narration of the facts.* And 
 where the services sued for were rendered under a contract which 
 was prematurely terminated by the client without cause, it is 
 advisable, and necessary in some jurisdictions, to aver that the 
 plaintiff had elected to treat the contract as rescinded.^ So, it 
 has been held that where recovery is sought for professional serv- 
 
 18 Prince v. Kennedy, 3 Cal. App. Mo. 140, 57 S. W. 537; Gabbert v. 
 
 404, 85 Pac. 859 ; Cleveland, C. C. & Penfield, 125 Mo. App. 436, 102 S. W. 
 
 St. L. K. Co. V. Shrum, 24 Ind. App. 627. 
 
 96, 55 N. E. 515; Ferris v. Lawrene, Montana. — Sanford v. Newell, 18 
 
 138 App. Div. 541, 123 N. Y. S. 209; Mont. 126, 44 Pae. 522. 
 
 Williams v. Dodge, 8 Misc. 317, 28 New York. — Wilson v. Burr, 25 
 
 N. Y. S. 729. Wend. 386. 
 
 » Cleveland, C, C. & St. L. R. Co. Oregon. — Gibbs v. Davis, 11 Ore. 
 
 V. Shrum, 24 Ind. App. 96, 55 N. E. 288, 3 Pac. 677. 
 
 515. IHanna v. Island Coal Co., 5 Ind. 
 
 20 Arkansas. — Eoysdon v. Sumner, 2 App. 163, 31 N. E. 846, 51 Am. St. 
 
 Ark. 465. Rep. 246. 
 
 Illinois. — People's Casualty Claim In the following cases it was held 
 
 Adjustment Co. v. Darrow, 70 111. App. that the statements of facts charging 
 
 22, affirmed 172 111. 62, 49 N. E. 1005. fraud were sufficient. Randall v. Van 
 
 7«(Jia«a.— Hornaday v. Campbell, 21 Wagenen, 115 N. Y. 527, 22 N. E. 
 
 Ind. 76. 361, 17 Civ. Proc. 403, 12 Am. St. Kep. 
 
 Michigan. — Eggleston v. Boardman, 828 ; Fowler v. Morrill, 8 Tex. 153. 
 
 37 Mich. 14. 8 Weil v. Fineran, 78 Ark. 87, 93 
 
 Missouri. — Warder v. Seitz, 157 S. W. 568. 
 
878 
 
 ACTIONS TO EBCOVEE COMPENSATION. 
 
 [§ 496 
 
 ices rendered in another state, the plaintiff must allege that such 
 an action was maintainable under the laws of that state,* 
 Surplusage may be stricken out.* 
 
 § 496. Alleging Performance. — The declaration or com- 
 plaint must allege that the services undertaken by the attorney 
 were performed,* but it is not necessary that the services should 
 be itemized and a distinct value placed upon each item thereof ; * 
 it will be sufficient to state the facts constituting the cause of 
 action in ordinary and concise language, and if the defendant de- 
 sires further information he may call for a bill of particulars, the 
 allowance of which is usually discretionary with the court." Of 
 course, if a contract of employment obliges the attorney to make 
 a detailed and separate charge for each item of service rendered, 
 then he should, in an action against his client to recover the fee, 
 
 3 Williams v. Dodge, 8 Misc. 317, 28 
 N. Y. S. 729. 
 
 * Dickinson v. Devlin, 46 Super. Ct. 
 (N. Y.) 232; Ay cock v. Baker, (Tex.) 
 60 S. W. 273. 
 
 B Fague V. Corcoran, 3 Mackey 
 (D. C.) 199. 
 
 6 California — Aydelotte v. Bloom, 
 13 Cal. App. 56, 108 Pac. 877. 
 
 Kentucky. — Morehead's Trustee v. 
 Anderson, 125 Ky. 77, 100 S. W. 340. 
 
 Massachiisetts. — Pierce v. Parker, 
 121 Mass. 403; Powers v. Manning, 
 154 Mass. 370, 28 N. E. 290, 13 L.E.A. 
 258. 
 
 Ohio. — Holmes v. Holland, 11 Ohio 
 Dee. (Reprint) 768, 29 Am. L. Eec. 
 115; Derringer v. Pugh, 3 Ohio Cir. 
 Dec. 706, 7 Ohio Cir. Ct. 158. 
 
 Texas. — Carothers v. Walton, 1 S. 
 W. 79. 
 
 WasMngton. — Thorp v. Ramsey, 51 
 Wash. 530, 99 Pac. 584. 
 
 West Virginia. — ^Watta v. West Vir- 
 ginia Southern E. Co., 48 W. Va. 262, 
 37 S. E. 700. 
 
 A claim for a, retaining fee need 
 not be specifically alleged; it will be 
 considered as included in a general 
 allegation of the amount due for pro- 
 fessional services, and may be so 
 proved. Knight v. Russ, 77 Cal. 410, 
 19 Pac. 698; Roche v. Baldwin, 143 
 Cal. 186, 76 Pac. 956; Aydelotte v. 
 Bloom, 13 Cal. App. 56, 108 Pac. 877. 
 
 T California. — Knight v. Russ, 77 
 Cal. 410, 19 Pac. 698; Aydelotte v. 
 Bloom, 13 Cal. App. 56, 108 Pac. 877. 
 
 Missouri. — Taussig v. St. Louis & 
 K. R. Co., 186 Mo. 269, 85 S. W. 378. 
 
 New York. — -Betts v. Betts, 4 Abb. 
 N. Cas. 317; Aub v. Hoffmann, 120 
 App. Div. 50, 104 N. Y. S. 913; 
 Squires v. Kissam, 121 App. Div. 607, 
 106 N. Y. S. 373; Phillips v. Stanton, 
 9 N. Y. St. Rep. 503. 
 
 Pennsylvania. — Cummings v. 
 Thomas, 1 W. N. C. 311; Williams v. 
 Huidekoper, 1 W. N. C. 376; Newlin 
 V. Armstrong, 8 W. N. C. 255. 
 
§§ 497-499] ACTIONS to eeoovee compensation. 879 
 
 file a bill of particulars in the first instance, setting out fully and 
 in detail the services charged for.* 
 
 § 497. Alleging Indebtedness. — Ordinarily the declaration 
 should allege the amount of the defendant's indebtedness, the 
 time it became due, and the failure of the defendant to pay it,^ 
 though in some jurisdictions some of these formalities may be dis- 
 pensed with under local practice acts,^" particularly where, from 
 the statement of facts alleged in the declaration, the law will 
 itself imply a promise on the part of the defendant to pay the 
 amount charged.*' 
 
 § 498. Alleging Plaintiff's Qualification to Practice Law. 
 
 — The declaration should allege that the plaintiff was a qualified 
 attorney at law at the time of the rendition of the services for 
 which he seeks to recover.** No particular formality is required 
 in this respect: it will be sufficient to allege that the plaintiff was 
 "engaged in the practice of law." *' The failure of the plaintiff 
 to allege his qualification, however, cannot be taken advantage 
 of on a motion in arrest of judgment," and it will be cured by a 
 finding that the services were performed by the plaintiff as at- 
 torney for the defendant ; *' and it has been intimated that it is 
 not necessary for the plaintiff to allege his qualification.** 
 
 § 499. Defensive Pleading. — The plaintiff's declaration or 
 complaint having been filed and served, the defendant, unless he 
 wishes to default, must file and serve such defensive pleading as 
 
 SMorehead's Trustee v. Anderson, 82 Pac. 985; Brady v. New York, 1 
 125 Ky. 77, 100 S. W. 340. Sandf. (N. Y.) 569; Dickinson v. Dev- 
 
 9 Baxter v. Billings, 83 Fed. 790, 49 lin, 46 Super. Ct. (N. Y.) 232. 
 
 U. S. App. 767, 28 C. C. A. 85; Prince 12 Kersey v. Garton, 77 Mo. 645. 
 
 V. Kennedy, 3 Cal. App. 404, 85 Pac. 13 Prince v. Kennedy, 3 Cal. App. 
 
 859; Harlan v. Lambert, 19 Cal. App. 404, 85 Pac. 859. 
 
 349, 125 Pac. 1079; Cleveland, C. C. 14 Kersey v. Garton, 77 Mo. 645, 5 
 
 & St. L. R. Co. V. Shrum, 24 Ind. App. Ky. L. Rep. 2, 16 Cent. L. J. 472. 
 
 96, 55 N. E. 515. 15 Miller v. Ballerino, 135 Cal. 566, 
 
 10 MacMahon v. Dufify, 36 Ore. 150, 67 Pac. 1046, 68 Pac. 6OO; 
 
 59 Pac. 184. 16 Miller v. Ballerino, 135 Cal. 566, 
 
 11 Cusick V. Boyne, 1 Cal. App. 643, 67 Pae. 1046, 68 Pac. 600. 
 
880 
 
 ACTIOirS TO UECOVEE COMPEITSATION. 
 
 [§ 499 
 
 is required by the local practice. As a rule, the defendant re- 
 plies by filing and serving an answer or affidavit of defense, and 
 it is essential that such pleading, to be effective, should either 
 deny the material allegations of the declaration or complaint," 
 or set up some sufficient affirmative defense.^' Thus, the defend- 
 ant may aver that he did not employ the plaintiff,^' or that the 
 contract of employment was void or voidable,^" or that he was 
 not indebted to the plaintiff in any amount,* or that the amount 
 of his indebtedness was less than that claimed by the plaintiff,^ 
 or that he had paid the plaintiff in full,' or that the plaintiff had 
 agreed to perform the services in question gratuitously.* So, the 
 defendant may allege that the plaintiff failed to perform the serv- 
 ices undertaken by him,^ or that they were negligently performed.' 
 In setting up affirmative defenses, an averment of the pleader's 
 conclusions will not do ; '' the facts upon which such defenses rest 
 must be clearly stated.* 
 
 17 Colorado. — Mulligan v. Smith, 
 32 Colo. 404, 76 Pac. 1063. 
 
 District of Columbia. — Whiting v. 
 Davidge, 23 App. Cas. 156; Heiberger 
 V. Worthington, 23 App. Cas. 565. 
 
 Iowa. — Musser v. Crum, 48 la. 52. 
 
 Hew York. — Pierce v. Newlin, 46 
 Misc. 122, 91 N. Y. S. 377. 
 
 Oregon. — Bowles v. Doble, 11 Ore. 
 474, 5 Pac. 918. 
 
 "Dobbs V. Campbell, 66 Kan. 805, 
 72 Pac. 273. 
 
 Defenses generally have been con- 
 sidered infra, §§ 551-564. 
 
 "Sparks v. Forrest, 85 Ark. 425, 
 108 S. W. 835. See also infra, § 
 507. And as to evidence of employ- 
 ment, see also infra, § 508. 
 
 20 Gary v. Western Union Tel. Co., 
 47 Hun 610, 15 N. Y. St. Rep. 204. 
 See also infra, § 517. 
 
 As to matters affecting the validity 
 of contracts of employment generally, 
 see supra, §§ 428-438. 
 
 1 Schermerhorn v. Van Allen, 18 
 Barb. (N. Y.) 29. 
 
 2 Blizzard v. Applegate, 61 Ind. 
 368; Templin v. Henkle, 50 la. 95; 
 Schermerhorn v. Van Allen, 18 Barb. 
 (N. Y.) 29. 
 
 8 Lansing v. Ensign, 62 How. Pr. 
 (N. Y.) 363. 
 
 * Newton v. More, 14 Ark. 166. 
 See also infra, § 559. 
 
 5 Cooper V. Stinson, 5 Minn. 201. 
 
 As to evidence of performance gen- 
 erally, see infra, §§ 523-528. 
 
 SButtrick v. Gilman, 22 Wis. 356. 
 See also infra, % 553. 
 
 'Mulligan v. Smith, 32 Colo. 404, 
 76 Pac. 1063. 
 
 8 California. — Prince v. Kennedy, 3 
 Cal. App. 498, 86 Pac. 609. 
 
 District of Columbia. — Whiting v. 
 Davidge, 23 App. Cas. 156. 
 
 Indiana. — Blizzard v. Applegate, 61 
 Ind. 368. 
 
 Kansas.—St. Louis, Ft. S. & W. R. 
 Co. V. Grove, 39 Kan. 731, 18 Pac. 958. 
 
 Missouri. — Comstock v. Flower, 109 
 Mo. App. 275, 84 S. W. 207. 
 
 New York. — ^Lansing v. Ensign, 62 
 
§ 500] 
 
 ACTIONS TO EECOVBE COMPENSATION. 
 
 881 
 
 Allegations and Proof. 
 
 § 500. Generally. — The evidence must be material ' to the 
 issues raised by the pleadings." Thus, an action based on an 
 express contract cannot be established by proof of the reasonable 
 value of the services rendered,^^ nor can an action on a quantum 
 meruit be sustained by proof of an express contract.^* Attention 
 should be given to these matters in the preparation of the plead- 
 ings. Under modern methods of practice, however, the way of 
 the transgressor is not as hard as it was at common law. A 
 variance will be deemed to exist now only for some substantial 
 cause.** Thus, in one case, a plaintiff who sued on an express 
 
 How Pr. 363 ; Butler v. General Acci- 
 dent Assur. Corp., 103 App. Div. 273, 
 16 N. Y. Ann. Cas. 201, 92 N. Y. S. 
 J 025; Pierce v. Newlin, 46 Misc. 122, 
 91 N. Y. S. 377 ; Dickinson u. Devlin, 
 46 Super. Ct. 232; Ditmas v. Hitcli- 
 ings, 29 N. Y. S. 776. 
 
 Pennsylvania. — Chain v. Hart, 140 
 Pa. St. 374, 21 Atl. 442. 
 
 South Carolina. — Harper v. Wil- 
 liamson, 1 MeCord L. 156. 
 
 (7ta/t.— Potter i: Ajax Min. Co., 22 
 Utah 273, 61 Pac. 999. 
 
 Washington. — Sessions v. Warwick, 
 46 Wash. 165, 89 Pac. 482. 
 
 9 Georgia. — Swift v. Register, 97 
 Ga. 446, 25 S. E. 315. 
 
 Massachusetts. — Cooke v. Plaisted, 
 181 Mass. 82, 62 N. E. 1054. 
 
 Michigan. — Walbridge v. Barrett, 
 118 Mich. 433, 76 N. W. 973. 
 
 Missouri. — Dempsey v. Wells, 109 
 Mo. App. 470, 84 S. W. 1015; Thomp- 
 son V. Emerson, 118 Mo. App. 232, 94 
 S. W. 818 ; Randolph v. St. Joseph, S. 
 & N. R. Co., 118 Mo. App. 460, 94 S. 
 W. 309. 
 
 Tennessee. — Callender v. Turpin, 61 
 S. W. 1057. 
 
 W. 571. 
 
 Wisconsin, — ^Yates v. Shepardson, 
 27 Wis. 238. 
 
 10 California. — Roche o. Baldwin, 
 135 Cal. 522, 65 Pac. 459, 67 Pac. 903. 
 
 Louisiana. — Ealer v. McAllister, 19 
 La. Ann. 21. 
 
 Massachusetts. — Cooke v. Plaisted, 
 181 Mass. 82, 62 N. E. 1054. 
 
 Minnesota. — Cooper v. Stinson, 5 
 Minn. 201. 
 
 Missowri. — Thompson v. Emerson, 
 118 Mo. App. 232, 94 S. W. 818. 
 
 Neiv York. — Barker v. Cairo & Ful- 
 ton R. Co., 3 Thomp. & C. 328. 
 
 Texas. — Higgins v. Matlock, 95 S. 
 W. 571. 
 
 "Dudley v. Sanders Mfg. Co., 114 
 Fed. 981; Ellis f. Woodburn, 24 Pac. 
 893, affirmed 89 Cal. 129, 26 Pac. 
 983; Boyd v. Boyce, (Tex.) 53 S. W. 
 720. See also supra, §§ 439, 440. 
 
 12 Roche V. Baldwin, 135 Cal. 522, 
 65 Pac. 459, 67 Pac. 903; Gilbert v. 
 Fay, 4 App. Cas. (D. C.) 38; Wells 
 V. Haynes, 101 Ga. 841, 28 S. E. 968. 
 See also supra, §§ 447-449. 
 
 13 California. — Miller v. Ballerino, 
 135 Cal. 566, 67 Pac. 1046, 68 Pac. 
 600; Aydelotte v. Bloom, 13 Cal. App. 
 56, 108 Pac. 877. 
 
 Attys. at L. Vol. II.— 56. 
 
882 
 
 ACTIONS TO KECOVEE COMPEN-SATION. 
 
 [§ 501 
 
 contract was permitted to prove and recover on a quantum meruit 
 vyhere it was apparent that the defendant was not prejudiced in 
 maintaining a defense on the merits/* and in another case it was 
 said that, even conceding that the complaint was upon a quantum 
 m,eruit, "the only effect in such a case of proof of an express con- 
 tract fixing the price is that the stipulated price becomes the 
 quantum, meruit in the case. It is not a question of variance, 
 but only of the mode of proof of the allegations of the plead- 
 ing." *° Then, too, in many instances one may extricate himself 
 from the consequences of careless pleading by amendment, or 
 avoid it by a joinder of counts. 
 
 Evidence Generally. 
 
 § 501. Burden of Proof. — In actions for compensation the 
 plaintiff must establish his case ** by a fair preponderance of the 
 evidence; " thus, he must prove an employment,'' the perform- 
 
 Colorado. — Fairbanks v. Weeber, 15 
 Colo. App. 268, 62 Pac. 368. 
 
 Illinois. — Hughes i;. Ferriman, 119 
 111. App. 169. 
 
 Missouri. — Brownrigg v. Massen- 
 gale, 97 Mo. App. 190, 70 S. W. 1103. 
 
 NeiD York. — See Yuella v. Hyman, 
 84 N. Y. S. 460. 
 
 Ohio. — Scheinesohn v. Lemonek, 84 
 Ohio St. 424, Ann. Cas. 1912C 737, 
 95 N. E. 913. 
 
 Oregon.— West v. Eley, 39 Ore. 461, 
 65 Pac. 798. 
 
 14 Skinner v. Busse, 38 Misc. 265, 
 11 N. Y. Ann. Cas. 156, 77 N. Y. S. 
 560. 
 
 IB Fells V. Vestvali, 2 Keyes (N. Y.) 
 152; West v. Eley, 39 Ore. 461, 65 
 Pac. 798. 
 
 16 Arizona. — See De Mund Lumber 
 Co. V. Stilwell, 8 Ariz. 1, 68 Pac. 543. 
 
 Colorado. — Casserleigh v. Green, 28 
 Colo. 392, 65 Pac. 32, affirming 12 
 Colo. App. 515, 56 Pac. 189. 
 
 Connecticut. — Seeley v. North, 16 
 Conn. 92. 
 
 Illinois. — Brown v. Cragg, 230 HI. 
 299, 82 N. E. 569, reversing 129 111. 
 App. 597. 
 
 Iowa. — Stanton v. Clinton, 52 la. 
 109, 2 N. W. 1027. 
 
 Kentucky. — Loomis v. Mullins, 101 
 S. W. 913. 
 
 Louisiana. — Durand v. Landry, 120 
 La. 513, 45 So. 409. 
 
 Maine. — Wright v. Fairbrother, 81 
 Me. 38, 16 Atl. 330. 
 
 Nebraska. — Saxton v. Harrington, 
 52 Neb. 300,. 72 N. W. 272; Marshall 
 V. Piggott, 78 Neb. 722, 111 N. W. 
 592. 
 
 New York. — Dickerson v. Mashelc 
 Engineering Co., 76 Misc. 263, 134 N. 
 Y. S. 940; Davis V. Fischer, 90 N. 
 Y. S. 301. 
 
 Texas. — Lynch v. Munson, 59 S. W. 
 603, 61 S. W. 140. 
 
 " Parker v. Esch, 5 Wash. 296, 31 
 Pac. 754. 
 
 18 See infra, §§ 507-522. 
 
§ 501] ACTIONS TO EBCOVEE COMPENSATION. 883 
 
 ance of professional services thereunder,^* and the value there- 
 of; '" and the evidence offered for these purposes must be material 
 to the issues introduced by the pleadings,^ and otherwise compe- 
 tent.* 
 
 But it rests with the defendant to establish matters of affirma- 
 tive defense,* such as negligence on the part of the attorney,* or 
 that the fee charged was unreasonably excessive,* or that the 
 contract for compensation was champertous, or otherwise tainted 
 with illegality.' But, in this connection, it will be recalled that 
 in some jurisdictions a recovery may be had on a quantum meruit 
 for services performed under contracts which were, in fact, void 
 or voidable because of illegality.'' Defenses generally will be 
 considered later.' 
 
 There is some difference of opinion as to whether an attorney 
 who sues on a contract for compensation must prove, as part of 
 his case in chief, that the contract was fairly made and honestly 
 entered into by the client, and that no undue advantage was taken 
 of the client's ignorance either of the law, or of facts known to 
 the attorney. In some cases proof of this character has been 
 required,' especially where the contract was entered into after 
 the relation of attorney and client had been established; ^'' in 
 other cases — and this seems to be the better view — it is held that 
 the fairness of a contract for compensation, and the reasonable- 
 
 19 See infra, §§ 523-528. 14 Ann. Cas. 340, 85 N. E. 940. And 
 
 20 See infra, §§ 529-544. see infra, § 553. 
 
 ISee the preceding section. 6 Tabet v. Powell, (Tex.) 78 S. W. 
 
 zCrowell v. Truax, 94 Mich. 585, ^^^- ^^^ ^^ ^^^° «"?"■»' §§ 428-532. 
 
 54 N. W. 384; Lamprey v. Langevin, ' ^'^'^'°'='^ *'• ^■^°°'^^' "« Mass. 425, 
 
 25 Minn. 122; Dempsey v. Wells, 109 ^^ ■''*'^- '^- -^*"^^- 
 
 Mo. App. 470, 84 S. W. 1015. ^^ *° champerty generally, see 
 
 ' Harlan v. Lambert, 19 Cal. App. 
 
 supra, §§ 379-399; and as to other 
 
 „,„ „ . _ „ . „, matters which may. render contracts 
 
 349, 125 Pac. 1079; Taussig v. St. . *■ j -j ui 
 
 ° tor compensation void or voidable, 
 
 Louis & K. E. Co., 186 Mo. 269, 85 ^^^ ^^^^^^ gg ^^^_^^^_ 
 
 S. W. 378; Pickett v. Gore, (Tenn.) 7 g^^ ^^^^^^ g 433. 
 
 58 S. W. 402; Sessions v. Warwich, s See infra, § 551 et seq. 
 
 46 Wash. 165, 89 Pac. 482; Conover 9 Blaikie v. Post, 137 App. Div. 648, 
 
 V. Carpenter, 57 Wash. 146, 106 Pad. 122 N. Y. S. 292. 
 
 i» Shirk V. Neible, 156 Ind. 66, 59 
 
 4 Priest V. Dodsworth, 235 111. 613, N. E. 281, 83 Am. St. Eep. 150. 
 
 620. 
 
884 
 
 ACTIONS TO EECOVEE COMPENSATION, 
 
 ness of the fees agreed upon, will be presumed, in the absence of 
 evidence to the contrary, or apparent excessiveness,^^ and, a for- 
 tiori, will these presumptions prevail where the contract for com- 
 pensation was made when the attorney was retained.'* In this 
 connection it is advisable to consult the previous discussion of 
 this subject.^' 
 
 A verdict against the weight of the evidence will not be sus- 
 tained." 
 
 § 502. Record as Evidence. — The record of the cause or 
 proceeding wherein professional services have been rendered is, 
 as a general rule, admissible in evidence as tending to show the 
 amount of compensation to which the attorney is entitled ; '* and 
 it is immaterial, in this respect, whether the plaintiff was, or was 
 not, sole counsel in the cause.'® So, also, record evidence may be 
 introduced for the purpose of establishing the fact of the plain- 
 tiff's employment,''' the performance of services thereunder," 
 
 "Weil V. Fineran, 78 Ark. 87, 93 
 S. W. 568; Eamage v. Littlejohn, 17 
 Wash. 386, 49 Pac. 486. 
 
 18 Boyd V. Daily, 85 App. Div. 583, 
 83 N. Y. S. 539, affirmed 176 N. Y. 
 556, 613, 68 N. E. 1114. 
 
 13 See supra, §§ 428-432. 
 
 llHopkinson v. Jones, 28 111. App. 
 409; Loomis v. MuUins, 101 S. W. 
 913, 31 Ky. L. Rep. 231; Samuels v. 
 Simpson, 144 App. Div. 466, 129 N. 
 Y. S. 534; Myers v. Bachrach, 110 
 N. Y. S. 872; Cohen v. Gertner, 116 
 N. Y. S. 712. 
 
 U Indiana. — Duckwall v. Williams, 
 29 Ind. App. 650, 63 N. E. 232. 
 
 Kentucky. — Gaylord v. Nelson, 7 
 Ky. L. Rep. 821. 
 
 Louisiana. — CuUom v. Mock, 21 La. 
 Ann. 687; Rutland v. Cobb, 32 La. 
 Ann. 857. 
 
 Massachusetts. — Cooke v. Plaisted, 
 176 Mass. 374, 57 N. E. 687. 
 
 Missouri. — Dempsey v. Schawacker, 
 ]40 Mo. 680, 38 S. W. 954, 41 S. W. 
 1100. 
 
 As to proof of the value of serv- 
 ices generally, see infra, §§ 529-544. 
 
 16 Thorp V. Ramsey, 51 Wash. 530, 
 99 Pac. 584. 
 
 IT Indiana. — Indianapolis Chair 
 Mfg. Co. V. Swift, 132 Ind. 197, 31 
 N. E. 800; Stringer v. Breen, 7 Ind. 
 App. 557, 34 N. E. 1015. 
 
 Louisiana. — Roselius v. Delachaiae, 
 5 La. Ann. 481, 52 Am. Dec. 597. 
 
 Nevada. — Mitchell v. Bromberger, 1 
 Nev. 604. 
 
 New York. — Beneville v. Whalen, 14 
 Daly 508, 2 N. Y. S. 20. 
 
 Washington. — Kiefer v. Lara, 56 
 Wash. 43, 104 Pac. 1102. 
 
 As to proof of employment gen- 
 erally, see vnfra, §§ 507-522. 
 
 18 Roraback v. Pennsylvania Co., 58 
 Conn. 292, 20 Atl. 465; Duckwall v. 
 Williams, 29 Ind. App. 650, 62 N. E. 
 232 ; Dempsey v. Schawacker, 140 Mo. 
 680, 38 S. W. 954, 41 S. W. 1100; 
 Stark V. Hill, 31 Mo. App. 101. 
 
§§ 503, 504] ACTIONS TO EECOVEE COMPENSATION. 885 
 
 the nature and extent thereof, ^^ and the amount involved 
 therein.^" 
 
 § 503. Right of Plaintiff to Practice as Attorney at Law. 
 
 — As a general rule, the plaintiff, in order to recover compensa- 
 tion for professional services, must shoM^ that, at the time the 
 services were rendered, he was a practicing lawyer, and had com- 
 plied with the statutory requirements and rules of court for the 
 regulation of such occupation.* It has been held, however, that 
 evidence of this character is called for only where the question 
 of the attorney's qualification to practice is raised by the plead- 
 ings,^ and also that the rule requiring proof of qualification does 
 not apply to a suit for the recovery of disbursements only,* or for 
 the recovery of compensation rendered in a capacity other than 
 that of an attorney at law.* This subject has been discussed here- 
 tofore.' 
 
 § 504. Declarations and Admissions. — It is competent to 
 introduce evidence of declarations and admissions by either party 
 which have a tendency to establish the issues involved,® excepting 
 where they are self-serving.'' Thus, declarations and admissions 
 by the client may be shown for the purpose of proving that he 
 had entered into a contract of employment with the plaintiff,* 
 
 As to proof of the performance of Ames v: Oilman, 10 Mete. (Mass.) 
 
 services generally, see infra, §§ 523- 239. 
 
 528. 2Bachman v. O'Reilly, 14 Colo. 
 
 19 Davis V. Walker, 131 Ala. 204, 433, 24 Pac. 546. See also Mulligan 
 31 So. 554; McFadden v. Ferris, 6 v. Smith, 32 Colo. 404, 76 Pac. 1063. 
 Ind. App. 454, 32 N. E. 107. 3 Perkins v. McDuflfee, 63 Me. 181. 
 
 As to proof of the nature and ex- 4 Mulligan v. Smith, 32 Colo. 404, 
 
 tent of services generally, see mfra, 76 Pac. 1063. 
 
 § 535. 6 See supra, § 23. 
 
 20 McFadden v. Ferris, 6 Ind. App. 6 Shain v. Forbes, 82 Cal. 577, 23 
 454, 32 N. E. 107. Pac. 198; Manning f. Osgood, 151 
 
 As to proof of the amount involved Mass. 148, 23 N. E. 732 ; Crowcll v. 
 
 generally, see infra, § 537. Truax, 94 Mich. 585, 54 N. W. 384. 
 
 1 Humphreys K. Harvey, 1 Bing. N. 7 Tiffany v. Morgan, (R. I.) 73. 
 
 Cas. 62, 27 E. C. L. 312; Williams Atl. 465. 
 
 V. Jones, 2 Q. B. 276, 42 E. C. L. 8 Fowler i. Iowa Land Co., 18 S. 
 
 673; Perkins v. McDuffee, 63 Me. 181; D. 131, 99 N. W. 1095. 
 
886 
 
 ACTIONS TO RECOVER COMPENSATION. 
 
 [§ 505 
 
 and the rendition of services thereunder,® and the value thereof.'" 
 So, evidence of this character is competent to show that the client 
 was indebted to the attorney," the amount of such indebtedness,'* 
 and the reasonableness thereof.*' Declarations and admissions 
 by the duly authorized agent of either party are also admissible," 
 but those of third persons are not,*^ excepting, possibly, by way 
 of rebuttal." Admissions and stipulations generally have been 
 considered heretofore.'^ 
 
 § 505. Bill Rendered as Evidence. — A bill rendered by an 
 attorney to his client for the value of professional services per- 
 formed by him, may be introduced in evidence by the defendant 
 as bearing on the question of the amount to which the plaintiff is 
 entitled; but, where there has been no payment or settlement of 
 the account, the bill rendered will not preclude the plaintiff from 
 showing that his services were worth more than the amount of 
 the bill, and recovering just compensation." It has been held. 
 
 9 Brewster v. Manning, 6 Hun (N. 
 Y.) 530. 
 
 10 Brewster v. Manning, 6 Hun (N. 
 Y.) 530. 
 
 11 Wharton v. Cain, 50 Ala. 408; 
 Hallam v. Bardsley, 7 Ky. L. Rep. 
 516. 
 
 izProulx V. Stetson & Post Mill 
 Co., 6 Wash. 478, 33 Pac. 1067. 
 
 iSTong V. Orr, 44 Ind. App. 681, 
 87 N. E. 147, affirmed on rehearing 
 44 Ind. App. 687, 88 N. E. 308; Boyd 
 r. Daily, 85 App. Div. 581, 83 N. Y. 
 S. 539, affirmed 176 N. Y. 556, 613, 
 68 N. E. 1114; Randall v. Packard, 
 1 Misc. 344, 20 N. Y. S. 716. 
 
 14 Fowler v. Iowa Land Co., 18 S. 
 D. 131, 99 N. W. 1095. 
 
 IsWalhridge v. Barrett, 118 Mich. 
 433, 76 N. W. 973, wherein it was 
 held that the introduction in evidence 
 of a declaration by the trial judge 
 that the attorney (plaintiff) ought 
 to have half of the judgment recov- 
 
 ered as compensation for his services, 
 was prejudicial error. 
 
 16 In Hunneman v. Phelps, 199 
 Mass. 15, 85 N. E. 169, it appears 
 that the declaration of a judge to a 
 third person was admitted in evi- 
 dence for the purpose of rebutting a 
 contention that the plaintiff "had ap- 
 plied for a guardian ad litem in bad 
 faith. 
 
 "See supra, §§ 258-265. 
 
 ii Illinois. — Bruce v. Dickey, 116 
 111. 527, 6 N. E. 435. 
 
 Indiana. — Miller v. Beal, 26 Ind. 
 234. 
 
 Michigan. — Romeyn v. Campau. 17 
 Mich. 327. 
 
 Minnesota. — AUis v. Day, 14 Minn. 
 516; Wilson v. Minneapolis & N. W. 
 R. Co., 31 Minn. 481, 18 N. W. 291; 
 Wilkinson t'. Crookston, 75 Minn. 
 184, 77 N. W. 797. 
 
 Missouri. — Webster v. Loeb, 112 
 Mo. App. 139, 86 S. W. 463. 
 
§ 506] 
 
 ACTIONS TO EECOVEB COMPENSATION. 
 
 887 
 
 however, that the plaintiff cannot recover a greater sum than 
 that specified in the bill rendered,*® especially where the rendition 
 of the bill was not accompanied by, or in pursuance of, a propo- 
 sition for the compromise of differences,*" or where a final settle- 
 ment has been had.* 
 
 § 506. Weight of Evidence. — The weight of the evidence 
 and the credibility of the witnesses are questions of fact which 
 it is the province of the jury to determine,* and, as a general 
 rule, this is also true as to evidence of the reasonable value of an 
 attorney's services, notwithstanding the testimony of experts on 
 
 Nebraska. — ^People's Nat. Bank v. 
 Geisthardt, 55 Neb. 232, 75 N. W. 
 582. 
 
 New York. — Williams v. Glenny, 16 
 N. Y. 389; Bratt v. Scott, 63 Hun 
 632 mem., 18 N. Y. S. 507; Breen v. 
 Union R. Co., 9 App. Div. 122, 75 
 N. Y. St. Eep. 615, 41 N. Y. S. 164. 
 
 Ohio. — Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249. 
 
 Vermont. — Hard v. Burton, 62 Vt. 
 314, 20 Atl. 269. 
 
 19 Flower's Succession, 3 La. Ann. 
 292. 
 
 SOIngersoll v. Morse, 33 Miss. 667. 
 
 1 Coopwood V. Wallace, 12 Ala. 
 790; Phenix Ins. Co. v. McKenzie, 
 38 HI. App. 630. 
 
 2 United (States. — Northern Pac. R. 
 Co. V. Clarke, 106 Fed. 794, 45 C. C. 
 A. 635 ; Gilmore V. McBride, 156 Fed. 
 464, 84 C. C. A. 274. 
 
 California, — Coonan v. Loewenthal, 
 129 Cal. 197, 61 Pac. 940; Aydelotte 
 V. Bloom, 13 Cal. App. 56, 108 Pac. 
 877. 
 
 Connecticut. — Graves v. Lockwood, 
 30 Conn. 276. 
 
 Illinois. — National Home-Bldg. & 
 Loan Assoc, v. Fifer, 71 111. App. 
 295; Beard V. Morgan, 71 HI. App. 
 
 564; Hughes v. Ferriman, 119 HI. 
 App. 169. 
 
 Massachusetts. — Hubbard v. Wood- 
 bury, 7 Allen 422. 
 
 Michicfan. — Howell v. Smith, 108 
 Mich. 350, 66 N. W. 218. 
 
 Minnesota. — White v. Esch, 78 
 Minn. 264, 80 N. W. 976; Gedney v. 
 Ayers, 111 Minn. 66, 126 N. W. 398. 
 
 Missouri. — Cross v. Atchison, T. & 
 S. F. R. Co., 141 Mo. 132, 42 S. W. 
 675; Trimble v. Texarkana & Ft. S. 
 R. Co., 199 Mo. 44, 97 S. W. 164; 
 Goldsmith v. St. Louis Candy Co., 85 
 Mo. App. 595; Dillon v. McMauus, 
 121 Mo. App. 37, 97 S. W. 971; Gab- 
 bert V. Penfield, 125 lio. App. 433, 102 
 S. W. 627 ; Ottofy v. Winsor, 137 Mo. 
 App. 272, 119 S. W. 40; Clay v. 
 Brown, 148 Mo. App. 541, 128 S. W. 
 803. 
 
 Nebraska. — Brennan-Love Co. v. 
 Mcintosh, 62 Neb. 522, 87 N. W. 
 327; Gathers v. Linton, 75 Neb. 420, 
 106 N. W. 468. 
 
 New York. — Richards v. Washburn, 
 14 App. Div. 237, 43 N. Y. S. 615; 
 McDonald v. De Vito, 118 App. Div. 
 566, 103 N. Y. S. 508; Steele v. Ham- 
 mond, 136 App. Div. 667, 121 N. Y. 
 S. 589; Holm v. Parmele-Eccleston 
 Co., 13 Misc. 317, 34 N. Y. S. 458; 
 
888 
 
 ACTIONS TO KECOVEE COMPENSATION. 
 
 [§ 507 
 
 that question,' excepting where counsel fees are fixed by the 
 court.* 
 
 Proof of Employment, 
 
 § 507. Necessity of Proving Employment. — An attorney's 
 claim for compensation necessarily rests on a contract of em- 
 ployment, either express or implied,^ in his professional ca- 
 pacity ; * and, therefore, in an action for its recovery it is essential 
 that the fact of such employment should be established,'' or that 
 
 Leavitt v. Chase, 59 Super. Ct. 230, 
 33 N. Y. S. 883; Eeves v. Hyde, 14 
 Daly 431, 14 N. Y. St. Rep. 689. 
 
 Pennsylvania. — ^Playford v. Hutch- 
 inson, 135 Pa. St. 426, 19 Atl. 1019. 
 
 Texas. — Britt v. Burghart, 16 Tex. 
 Civ. App. 78,- 41 S. W. 389; Sanborn 
 V. Plowman, 20 Tex. Civ. App. 484, 
 49 S. W. 639; Eailey v. Davis, 128 
 S. W. 434. 
 
 Washington. — Proulx v. Stetacn & 
 Post Mill Co., 6 Wash. 478, 33 Pae. 
 1067; Steel v. Gordon, 14 Wash. 521, 
 45 Pac. 151. 
 
 See also infra, § 565. 
 
 3 See infra, % 550. 
 
 4 See infra, § 544. 
 
 ^ Alahama. — Jackson v. Clopton, 66 
 Ala. 29; Humes v. Decatur Land 
 Improvement & Furnace Co., 98 Ala. 
 471, 13 So. 368; Irvin v. Strother, 
 163 Ala. 484, 50 So. 969. 
 
 Illinois. — Chicago, St. C. & M. R. 
 Co. V. Lamed, 26 111. 218; Price v. 
 Hay, 132 111. 543, 24 N. E. 620; 
 Evans v. Mohr, 153 111. 561, 39 N. E. 
 1083. 
 
 Indiana. — Miles v. De Wolf, 8 Ind. 
 App. 153, 34 N. E. 114. 
 
 Iowa. — ^EUwood v. Wilson, 21 la. 
 523; Turner v. Myers, 23 la. 391. 
 
 Louisiana. — Wailes v. Brown's Suc- 
 cession, 27 La. Ann. 411; In re Mc- 
 Pherson, 129 La. 182, 55 So. 756. 
 
 Maine. — Wright v. Fairbrother, 81 
 Me. 38, 16 Atl. 330. 
 
 Maryland. — Neighbors v. State, 41 
 Md. 478. 
 
 Michigan. — Eraser v. Haggerty, 86 
 Mich. 521, 49 N. W. 616. 
 
 New York. — Burghart v. Gardner, 
 3 Barb. 64; Brown v. Genet, 63 How. 
 Pr. 236; Mellvaine v. Steinson, 90 
 App. Div. 77, 85 N. Y. S. 889. 
 
 Pennsylvania. — ^Newbaker v. Al- 
 ricks, 5 Watts 183; Jones v. Woods, 
 76 Pa. St. 408. 
 
 South Carolina. — Nimmons v. Stew- 
 art, 13 S. C. 445; Ex p. Fort, 36 S. 
 C. 25, 15 S. E. 332. See also Ex p. 
 Lynch, 25 S. C. 193. 
 
 Tennessee. — Hume v. Commercial 
 Bank, 13 Lea 496; Johnson v. Wil- 
 liams, 96 Tenn. 339, 34 S. W. 
 434. 
 
 As to contracts for compensation 
 generally, see supra, §§ 417^38. 
 
 6 Cohen v. Gertner, 116 N. Y. S. 
 712. 
 
 1 United States. — -Herman v. Met- 
 ropolitan St. E. Co., 121 Fed. 184. 
 
 Alabama. — Davis v. Walker, 131 
 Ala. 204, 31 So. 554; Tisdale v. Troy, 
 152 Ala. 566, 44 So. 601; Irvin 
 V. Strother, 163 Ala. 484, 50 So. 
 969. 
 
 Arkarisas. — Davis v. Trimble, 76' 
 Ark. 115, 88 S. W. 920. 
 
§ 507] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 889 
 
 California. — Merrill v. Gunnison, 
 H5 Cal. 544, 79 Pac. 67. 
 
 Georgia. — Simms v. Floyd, 65 Ga. 
 719; Matliews v. Giles, 108 Ga. 364, 
 33 S. E. 1006. 
 
 Illinois. — Chicago, St. C. & M. R. 
 Co. V. Lamed, 26 111. 218; Price v. 
 Hay, 132 111. 543, 24 N. E. 620; Tas- 
 cott V. Grace, 12 111. App. 639. 
 
 Indiana. — Hersleb v. Moss, 28 Ind. 
 354; Stringer v. Breen, 7 Ind. App. 
 557, 34 N. E. 1015; Miles v. De Wolf, 
 8 Ind. App. 153, 34 N. E. 114; Cleve- 
 land, C, C. & St. L. K. Co. V. Shrum, 
 24 Ind. App. 96, 55 K. E. 515; 
 Blakey v. New York Life Ins. Co., 28 
 Ind. App. 428, 63 N. E. 47; Duckwall 
 V. Williams, 29 Ind. App. 650, 63 
 N. E. 232. 
 
 Iowa. — Mabry v. Cheadle, 80 N. W. 
 312. 
 
 Kentucky. — Savings Bank of Cin- 
 cinnati V. Benton, 2 Mete. 240; Wel- 
 don V. Finley, 104 S. W. 701, 31 Ky. 
 L. Eep. 1050. 
 
 Louisiana. — Eoselius v. Delaehaiae, 
 5 La. Ann.. 481, 52 Am. Dec. 597; 
 Cooley V. Cecile, 8 La. Ann. 51 ^ 
 Michon v. Gravier, 11 La. Ann. 596; 
 Forman v. Sewerage & Water Board, 
 119 La. 49, 12 Ann. Cas. 773 (and see 
 note at p. 776), 43 So. 908; Dreifus 
 V. Colonial Bank & Trust Co., 127 
 La. 1086, 54 So. 358. 
 
 Maine. — Smith v. Lyford, 24 Me. 
 147; Prentiss v. Kelley, 41 Me. 436; 
 Wright V. Fairbrother, 81 Me. 38, 16 
 Atl. 330. 
 
 Massachusetts. — Pew v. Gloucester 
 First Nat. Bank, 130 Mass. 391. 
 
 Michigan. — McCutcheon v. Loud, 71 
 Mich. 433, 39 N. W. 569; Fraser v. 
 Haggerty, 86 Mich. 521, 49 N. W. 
 616; Lillis V. Pennsylvania Casualty 
 Co., 131 Mich. 301, 91 N. W. 165, 9 
 Detroit Leg. N. 315. 
 
 Minnesota. — White v. Esch, 78 
 Minn. 264, 80 N. W. 976. 
 
 Mississippi. — Rives v. Patty, 74 
 Miss. 381, 20 So. 862, 60 Am. St. Rep. 
 510; Southern Home Building & 
 Loan Assoc, v. Butt, 77 Miss. 944, 28 
 So. 725. 
 
 Missouri. — Warder v. Seitz, 157 
 Mo. 140, 57 S. W. 537. 
 
 Montana. — McHatton v. Girard, 41 
 Mont. 387, 109 Pac. 704. 
 
 Nebraska. — Saxton v. Harrington, 
 52 Neb. 300, 72 N. W. 272. 
 
 New York. — Burghart v. Gardner, 
 3 Barb. 64; Hotchkiss v. Le Roy, 9 
 Johns. 142; Richards v. Washburn, 
 14 App. Div. 237, 43 N. Y. S. 615; 
 Kellogg V. Rowland, 40 App. Div. 
 416, 57 N. Y. S. 1064; Williams v. 
 Lewis, 45 App. Div. 623, 60 N. Y. S. 
 804; Whitesell v. New Jersey & H. 
 R. R. & F. Co., 68 App. Div. 82, 74 
 N. Y. S. 217; Altkrug v. Horowitz, 
 111 App. Div. 420, 97 N. Y. S. 716; 
 Kneeland v. Hurdy, 97 N. Y. S. 957; 
 Newlin v. Carbon Steel Co., 110 N. 
 Y. S. 921; Mains v. Gethen, 111 N. Y. 
 S. 598. 
 
 OAto.— Dorsey v. Goodenow, Wright 
 120. 
 
 Pennsylvania. — Jones v. Woods, 76 
 Pa. St. 410. 
 
 South Carolina. — Westmoreland v. 
 Martin, 24 S. C. 238. 
 
 Teams. — Morris v. Kesterson, 88 S, 
 W. 277. 
 
 Yermont. — Smith v. Dougherty, 37 
 Vt. 530; Safford v. Vermont & C. R. 
 Co., 60 Vt. 185, 14 Atl. 91; Powell 
 V. Concord First Nat. Bank, 71 Vt. 
 462, 45 Atl. 1036. 
 
 Washington. — McKay v. Atkinson, 
 .55 Wash. 591, 104 Pac. 806. 
 
 Wisconsin. — Millett v. Hayford, 1 
 Wis. 401; Randall v. State, 16 Wis. 
 340. 
 
890 ACTIONS TO EECOVEE COMPENSATION. [§ 508 
 
 the attorney's acts, if unauthorized, should be ratified or acqui- 
 esced in,' or the benefits of his services knowingly accepted.® It 
 is essential also that the attorney should have been employed to 
 render the particular services for which compensation is claimed ; " 
 but where there is proof of a general employment, it is not neces- 
 sary to prove an employment for each item.'' A conflict of evi- 
 dence as to either of these matters presents a question of fact.'' 
 The employment of law partnerships has been discussed hereto- 
 fore." 
 
 § 508. Mode of Proof. — It has been stated heretofore, in 
 discussing the sufficiency of a retainer, that the employment of 
 an attorney did not differ in any material respect from the em- 
 ployment of other agents.'* A similar analogy exists as to the 
 mode of proving such employment, and, therefore, an attorney's 
 employment may be proved by any evidence which has a tendency 
 to establish that fact.'^ Thus, it has been held proper to receive 
 evidence of a previous employment by the same client, for the 
 purpose of showing the relations existing between the parties, and 
 as leading up to the employment for which compensation was 
 claimed, although the two employments had no direct connection 
 with each other.'* The attorney is a competent witness in his 
 own behalf in this respect, and, therefore, he may establish the 
 
 8 See infra, § 517. 16 California. — Kelly v. Nlng Yung 
 
 9 See infra, §§ 518, 519. B^nev. Ass'n, 2 Cal. App. 460, 84 
 
 10 Hopkins v. Mallard, 1 G. Greene Pac. 321. 
 
 (la.) 117. New Mampshire. — Goodall v. Bedel, 
 
 11 Stewart v. Emerson, 70 Mo. App. 20 N. H. 205. 
 
 482. New Jersey. — Wilson v. Seeber, 72 
 
 12 Bissell V. Zorn, 122 Mo. App. N. J. Eq. 523, 66 Atl. 909. 
 
 688, 99 S. W. 458. See also infra, . New York. — See Welti v. Cohen, 
 
 §565. ■ 157 App. Div. 65, 141 N. Y. S. 670. 
 
 "See supra, §§ 471-474. Texas. — Fore v. Chandler, 24 Tex. 
 
 1* See supra, § 135 ; and as to re- 146. 
 
 tainers generally, see supra, §§ 133, Wisconsin. — White v. Lueps, 55 
 
 134. See also Mellon v. Fulton, 22 Wis. 222, 12 N. W. 376. And see the 
 
 Okla. 636, 98 Pac. 911, 19 L.R.A. section following. 
 
 (N.S.) 960, quoting Detroit v. le Mabry v. Cheadle, (la.) 80 N. 
 
 Whittemore, 27 Mich. 281. W. 312. 
 
§ 509] ACTIONS TO EECOVEE COMPENSATION. 891 
 
 fact of his own employment." So, also, that fact may be estab- 
 lished by the testimony of any other competent witness,'' by a 
 writing '* or by the record in the cause,'" or by the admissions 
 or declarations of the client.* The evidence must, of course, be 
 material to the issues involved, and otherwise competent, in all 
 cases.' In some instances it is not necessary to prove the original 
 employment,' providing the attorney can establish an acquiescence, 
 by the client, in his acts,* or an acceptance of the benefits of the 
 services rendered by him.' An. employment will be presumed in 
 an action to recover an attorney's fee which was allowed in an- 
 other case.* So, there are cases wherein a promise to pay may 
 be inferred from the relations of the parties and the circum- 
 stances in the case ; thus, for instance, where professional services 
 are rendered to a minor, a promise to pay therefor may be pre- 
 sumed on the part of the father.' But the father cannot be made 
 liable for the services of an attorney rendered as guardian ad 
 litem for his infant children, in proceedings in the probate courts, 
 where his interests and those of the children are conflicting.' 
 
 § 509. What Constitutes Employment Generally. — 
 
 An attorney's employment may, of course, be established by proof 
 of an express contract therefor.® 'No particular formality is re- 
 quired. It will be suiEcient to show that professional services 
 were rendered by the attorney at the request of the client.*" Thus, 
 
 " Schlieht v. Stivers, 61 la. 746, 16 6 Ramage v. Littlejohn, 17 Wash. 
 
 N. W. 74; Chamberlain v. Rodgers, 386, 49 Pac. 486. 
 
 79 Mich. 219, 44 N. W. 598. V Hill v. Childress, 10 Yerg. (Tenn.) 
 
 18 White V. Lueps, 55 Wis. 222, 12 515. 
 
 N. W. 376. 8 Thorn v. Beard, 60 Hun 579 mem., 
 
 19 Fitzpatrick v. Howard, 148 App. 14 N. Y. S. 339. 
 
 Div. 802, 133 N. Y. S. 345. a See supra, % 417. And see also, as 
 
 20 See supra, § 502, note. to contracts for compensation general- 
 1 See supra, § 504. ly, and matters affecting the validity 
 8 Davis V. Walker, 131 Ala. 204, 31 thereof, supra, §§ 418-438. 
 
 So. 554 ; Wright v. Gillespie, 43 Mo. 10 Brennan-Love Co. v. Mcintosh, 
 
 App. 244. 62 Neb. 522, 87 N. W. 327; Mitchell 
 
 'Hotchkiss V. Le Roy, 9 Johns. (N. v. Bromberger, 1 Nev. 604; Tindol v. 
 
 Y.) 142. Beasley, (Tex.) 40 S. W. 155; Isham 
 
 4 See infra, § 517. v. Parker, 3 Wash. 755, 29 Pac. 835. 
 
 6 See infra, § 518. 
 
892 ACTIONS TO RECOVEK COMPENSATION. [§ 510 
 
 where an attorney states to his client that he will conduct a cer- 
 tain case for a specified sum, and the latter replies that he may 
 go ahead and take it up, there is a contract on the part of the 
 client to pay the amount named, although he may be prosecuting 
 the suit for the benefit of another.*^ So, also, in some instances, 
 the employment of counsel will be presumed,** especially where 
 the benefits of his services have been knowingly accepted.*' But 
 the mere fact that an attorney receives and credits certain pay- 
 ments as retainers, without the knowledge of the person who 
 made such payments, does not show a retainer in fact.** Nor can 
 an attorney establish the fact of his employment by showing that 
 he acted for the client in a professional capacity, and that his 
 authority to do so was recognized by the adverse party.*" So, a 
 resolution adopted by the officers of a corporation, and accepted 
 by an attorney, to the effect "that the solicitor's salary shall begin 
 when he is notified that his services are required by the com- 
 pany," is not evidence of the attorney's employment, or of his 
 right to compensation for services rendered on the strength of 
 the resolution, until he has, in fact, been notified that his services 
 are required.** Nor does the mere fact that the name of an at- 
 torney appeared on the letter headings of a society, as one of its 
 general committee, show conclusively that the society undertook 
 to pay him for the rendition of professional services in its be- 
 half.*' 
 
 § 510. Authority to Employ Generally. — Where the em- 
 ployment has been effected by an agent, or other representative 
 of the client, it is incumbent on the attorney, if he sues for his 
 compensation, to prove that the person by whom he was employed 
 was duly authorized by the client so to act,*' or that the employ- 
 
 11 Bell V. Smith, 28 111. App. 181. Trust Co., 194 Pa. St. 544, 45 Atl. 
 
 la See the preceding section, notes 333. 
 
 6, 7. l' Williams v. Lewis, 45 App. Div. 
 
 la See infra, § 518. 623, 60 N. Y. S. 804. 
 
 1* Blair v. Columbian Fireproofing 18 United States. — Orr v. Brown, 74 
 
 Co., 191 Mass. 333, 77 N. E. 762. Fed. 1004, 41 U. S. App. 486, 21 C. C, 
 
 15 Hotchkiss V. Le Roy, 9 Johns. A. 195. 
 
 (N. Y.) 142. Georjijo.— Mathews «/-. Giles, 108 Ga. 
 
 16 Fitzpatriek v. Lincoln Savings & 364, 33 S. E. 1006. 
 
511] 
 
 ACTIONS TO KECOVEE COMPENSATION. 
 
 893 
 
 ment, if unauthorized, was subsequently ratified,'^ or the benefits 
 of his services knowingly accepted.*" Consideration has been 
 given, heretofore, as to who may employ counsel,*^ the authority 
 of attorneys to appear for litigants,' and also the authority to 
 employ associate counsel.* An authority to collect a claim usually 
 carries with it the authority either to employ counsel for that 
 purpose, or to appear as such.* 
 
 § 511. Employment by Representative Persons. — The em- 
 ployment of an attorney by one who, without authority, assumes 
 to act in the matter as the representative of another, as, for in- 
 stance, an agent, guardian, executor, administrator, trustee, etc., 
 is not binding on the person in whose behalf the employment was 
 effected,* unless, of course, the unauthorized act is subsequently 
 
 Iowa. — Foster v. Clinton County, 51 
 la. 541, 2 N. W. 207. 
 
 Louisiana. — Barker v. York, 3 La. 
 Ann. 90. 
 
 Minnesota. — Plymat v. Brush, 46 
 Minn. 23, 48 N. W. 443. 
 
 Mississippi. — Bush v. Southern 
 Brewing Co., 69 Miss. 200, 13 So. 856. 
 
 Nebraska. — Saxton v. Harrington, 
 52 Neb. 300, 72 N. W. 272. 
 
 New York. — Cochran v. Newton, 5 
 Denio 482; Harnett v. Garvey, 36 
 Super. Ct. 327; Thorn v. Beard, 60 
 Hun 579 mem., 14 N. Y. S. 339; 
 Egan V. Be Jonge, 113 N. Y. S. 737. 
 
 Ohio. — Doraey v. Goodenow, Wright 
 120. ^ee also Furst v. MuUer, 5 
 Ohio Cir. Dec. 361, 11 Ohio Cir. Ct. 
 178. 
 
 Pennsylvania. — ^Com. v. Order of 
 Solon, 192 Pa. St. 487, 43 Atl. 1084. 
 
 South Carolina. — Nimmons v. Stew- 
 art, 13 S. C. 445. 
 
 South Dakota. — Kirby v. Western 
 Wheeled Scraper Co., 9 S. D. 623, 70 
 N. W. 1052. 
 
 Wisconsin. — Randall v. State, 16 
 Wis. 340. 
 
 19 See infra, § 517. 
 «!> See infra, § 518. 
 21 See supra, § 136. 
 
 1 See supra, §§ 229-233. 
 
 2 See supra, §§ 210, 407-409; and 
 see infra, § 516. 
 
 3 Alabama. — Compare Milligan v. 
 Alabama Fertilizer Co., 89 Ala. 322, 
 7 So. 650. 
 
 Georgia. — Strong v. West, 110 Ga. 
 382, 35 S. E. 693. 
 
 Kansas. — Ryan v. Tudor, 31 Kan. 
 366, 2 Pac. 797. 
 
 Kentucky. — Jones v. Jones, 39 S. W. 
 251. 
 
 Louisiana. — Morgan v. Brown, 12 
 La. Ann. 159. 
 
 New York. — McMinn v. Richtmyer, 
 3 Hill 236. 
 
 Pennsylvania. — Swartz v. D. S. 
 Morgan & Co., 163 Pa. St. 195, 29 Atl. 
 974, 975, 43 Am. St. Rep. 786. 
 
 As to the duty and liability of coun- 
 sel with respect to the collection of 
 claims, see generally supra, §§ 326- 
 330. 
 
 * Louisiana. — Barker v. York, 3 La. 
 Ann. 90. 
 
894 
 
 ACTIONS TO RECOVEE COMPENSATION. 
 
 {§ 511 
 
 ratified,' or the benefits of the attorney's services are knowingly 
 accepted.® The mere fact that one claims to be the agent or 
 other representative of another, and actually employs counsel for 
 him, is not sufficient evidence of his authority to do so ; ' but 
 where one is duly authorized to retain counsel for another, or 
 where such authority exists as a matter of law, an employment 
 by such representative will bind those for whom he acts.' In the 
 absence of any special agreement, the general rule is that an 
 attorney must look to those who employ him for his compensa- 
 tion for services rendered, even though, in truth, they act as the 
 representatives of others ; ' and a fortiori will the person effecting 
 the employment be personally responsible if he acts unauthor- 
 izedly." But individual liability will not be enforced against 
 one who employs counsel in his representative capacity only, and 
 this is especially true where the amount due can be collected 
 
 Maryland. — Laroque v. Candolle, 4 
 Md. Ch. 347. 
 
 Mississippi. — Bush v. Southern 
 Brewing Co., 69 Miss. 200, 13 So. 856. 
 
 New York. — Randall v. Dwight, 5 
 N. Y. St. Rep. 889. 
 
 Vermont. — Powell v. First Nat. 
 Bank, 71 Vt. 462, 45 Atl. 1036. 
 
 Washington. — Abel v. Hansen, 62 
 Wash. 492, 114 Pac. 182. See also 
 supra, § 136. 
 
 5 See infra, § 517. 
 
 6 See supra, § 518. 
 
 T Southern Home Building & Loan 
 Ass'n V. Butt, 77 Miss. 944, 28 So. 
 725. 
 
 8 Alalama. — Hilliard v. Carr, 6 Ala. 
 557. 
 
 California. — Dunlap v. Standard 
 Consol. Min. Co., 61 Cal. 237. 
 
 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. Rep. 
 567. 
 
 Illinois. — Price ». Hay, 132 111. 543, 
 24 N. E. 620. 
 
 Indiana. — Nave v. Salmon, 51 Ind. 
 159; Long v. Rodman, 58 Ind. 58. 
 
 -Keirn v. Carson, 12 
 Smedes & M. 431. 
 
 New York. — ^Kellogg v. Reese, 48 
 Hun 621 mem., 14 Civ. Proc. 283, 1 N. 
 Y. S. 291. 
 
 Pennsylvania. — ^Appeal of Mander- 
 son, 113 Pa. St. 631, 6 Atl. 893; 
 Swartz V. D. S. Morgan & Co., 163 Pa. 
 St. 195, 29 AtL 974, 975, 43 Am. St. 
 Kep. 786. 
 
 Vermont. — Foot v. Rutland & W. R. 
 Co., 32 Vt. 633. 
 
 SLivermore v. Rand, 26 N. H. 85; 
 Bowman v. Tallman, 27 How. Pr. 212, 
 2 Robt. 385, affinned 41 N. Y. 619, 40 
 How. Pr. 1; Hallam v. Maxwell, 2 
 Cine. Super. Ct. (Ohio) 384, revers- 
 ing 2 Cine. Super. Ct. 136; Playford 
 V. Hutchinson, 135 Pa. St. 426, 19 
 Atl. 1019; McGloin v. Vanderlip, 27 
 Tex. 366; Paddock v. Kittredge, 31 Vt. 
 378. 
 
 10 Charles v. Eshelman, 5 Colo. 
 107; Austin e. Monroe, 4 Lans. (N. 
 Y.) 67. 
 
§ 512] ACTIONS TO RECOVEE COMPENSATION. 895 
 
 from the person or estate represented." T^or will public agents, 
 ■who have been appointed under legislative enactment, be held 
 personally responsible for the compensation of counsel retained 
 by them, because, in such case, the attorney is bound to take 
 notice of the capacity in which his clients act.^* 
 
 § 512. Employment by Corporations and Stockholders 
 Thereof. — One who claims compensation for professional serv- 
 ices rendered in the interests of a corporation must prove the fact 
 of his employment, *' as stated heretofore with respect to proof 
 of employment by individuals.** Corporations may, of course, 
 and frequently do employ counsel by a resolution duly passed 
 by the board of directors and entered on the minutes, but no such 
 formality is necessary; it will be sufficient for the attorney to 
 show that some authorized person requested him to represent the 
 company in a particular transaction, and that he did so.*' So, 
 a corporation may be bound in this respect by the acts of its 
 agents, though not under the corporate seal ; thus, where the presi- 
 dent of a corporation gave a solicitor written authority to prose- 
 cute an appeal on its behalf, it was held that the corporation was 
 bound thereby.*® And one corporation may so own and control 
 another corporation as to render such other liable for the com- 
 pensation of counsel, employed by the controlling company, for 
 services rendered in the interest of the company which was so 
 controlled.*'' So, also, an attorney may recover his fees if his 
 employment, though unauthorized, was subsequently ratified,*' 
 
 llMalville v. Kappeler, (Cal.) 37 N. E. 15, 30 L.R.A. 574, affirming 4 
 
 Pac. 934. Misc. 302, 24 N. Y. S. 106. 
 
 13 Butler V. Mitchell, 15 Wis. 355. "See supra, § 507. 
 
 13 Davis V. Trimble, 76 Ark. 115, 88 IB Randolph v. St. Joseph, S. & N. 
 
 S. W. 920; Dreifus v. Colonial Bank R. Co., 118 Mo. App. 460, 94 S. W. 
 
 & Trust Co., 127 La. 1086, 54 So. 358 ; 309 ; Scott v. New York Filling Co., 
 
 De Long v. Muskegon Booming Co., 88 79 N. J. L. 231, 75 Atl. 772. 
 
 Mich. 282, 50 N. W. 297; Lillis v. 16 American Ins. Co. v. Oakley, 9 
 
 Pennsylvania Casualty Co., 131 Mich. Paige (N. Y.) 496, 38 Am. Dec. 561. 
 
 301, 91 N. W. 165, 9 Detroit Leg. N. "Trimble v. Texarkana & Ft. S. R. 
 
 315; Parshley v. Third Methodist Co., 199 Mo. 44, 97 S. W. 164. 
 
 Episcopal Church, 147 N. Y. 583, 42 " See infra, § 517. 
 
896 ACTIONS TO BECOVEE COMPENSATION. [§ 513 
 
 or the benefits of his services were knowingly accepted." In many 
 jurisdictions attorneys employed by certain stockholders of cor- 
 porations are entitled to compensation from the company's funds 
 for their services, and this is especially true where the services 
 were beneficial to all the Stockholders.*" So, under the local laws 
 prevailing in several states, compensation may be recovered for 
 professional services rendered in winding up proceedings.^ 
 
 § 513. Employment by One of Several Parties as Creating 
 Joint Liability. — The fact that several persons are jointly in- 
 terested in certain litigation does not, as a general rule, authorize 
 any one of them to employ counsel at the expense of the other joint 
 litigants, or parties in interest.* Nor, in such case, will the mere 
 fact that the attorney's services were beneficial to all the parties 
 render them liable for his compensation,* because the principle 
 upon which implied contracts are sustained is not merely that 
 one party has done work which benefits another, but also that 
 such other party, knowing that services are being performed for 
 his benefit and on his account, makes no objection, but permits 
 the continuance thereof.* And where several joint parties have 
 separate counsel, each of them may suppose that such counsel will 
 act together for the mutual benefit of all, and that, at the same 
 
 19 See infra, § 518. Kentucky. — Thirlwell v. Campbell, 
 
 20 Davis V. Gemmell, 73 Md. 530, 21 11 Bush 164; Savings Bank of Cin- 
 Atl. 712; Kanneberg v. Evangelical einnati v. Benton, 2 Mete. 240. 
 Creed Cong., 146 Wis. 610, Ann. Cas. Madne. — Smith v. Lyford, 24 Me. 
 1912C 376, 131 N. W. 353, 39 L.R.A. 147. 
 
 (N.S.) 138. See also supra, §§ 477, Maryland. — ^McGraw v. Canton, 74 
 
 478. Md. 554, 22 Atl. 132,' distinguishing 
 
 1 Whitsett V. City Building & Loan Davis v. Gemmell, 73 Md. 530, 21 Atl. 
 Assoc, 3 Tenn. Ch. 526. 712. 
 
 2 United States. — Adriatic F. Ins. Minnesota. — White v. Esch, 78 
 Co. V. Treadwell, 108 U. S. 361, 2 S. Minn. 264, 80 N. W. 976. 
 
 Ct. 772, 27 U. S. (L. ed.) 754. Pennsylvania.— Jones v. Woods, 76 
 
 Georgia. — Simms v. Floyd, 65 Ga. Pa. St. 408. 
 719. 3 Savings Bank of Cincinnati v. 
 
 Illinois.— Chicago, St. C. & M. R. Benton, 2 Mete. (Ky.) 240. And see 
 
 €o. V. Larned, 26 III. 220. infra, § 518. 
 
 Kansas. — Muscott v. Stubbs, 24 * Muscott v. Stubbs, 24 Kan. 520. 
 
 Kan. 520. 
 
§ 514] ACTIONS TO EECOVEE COMPENSATION. 897 
 
 time, each attorney will look to his own client for compensation.* 
 So, an agreement between several litigants, jointly interested, 
 for the employment of counsel to represent all of them, and pro- 
 viding that each party shall pay its pro rata share of the expense, 
 will bind the counsel so employed, provided, of course, that they 
 had knowledge of the agreement.® Likewise a joint liability 
 may be created by a joint employment,'' notwithstanding a 
 secret agreement between the parties whereby one of them agreed 
 to pay all the attorney fees.' So, a joint liability may be created 
 by the ratification of an unauthorized employment,' or by know- 
 ingly accepting the benefits of an attorney's services without ob- 
 jection.'" And where a joint liability has been created, one who 
 has paid more than his proportionate share of the attorney's com- 
 pensation may compel contribution from his colitigants.^' 
 
 § 514. Employment by One of Several Heirs or Legatees. 
 
 — The principles stated in the preceding section are equally ap- 
 plicable here, for it is well settled that the employment of counsel 
 by one of several heirs or legatees will not, of itself, create a lia- 
 bility on the part of the other heirs or legatees for the compensa- 
 tion of the counsel so employed,** even though his services were 
 beneficial to all of them,'^ excepting where they have resulted in 
 bringing a fund into court, and, under the local law, attorney 
 fees may be allowed therefrom.'* l^or will the employment of 
 an attorney by an heir or legatee create a liability on the part 
 of the estate involved.'* But a joint liability may be created by 
 
 6 Muscott V. Stubbs, 24 Kan. 520 ; H» See infra, % 518. 
 
 Eadley v. Gaylor, 98 App.' Div. 158, " Percy v. Clary, 32 Md. 245. 
 
 90 N. Y. S. 758; Vilas t>. Bundy, 106 12 Grimball v. Cruse, 70 Ala. 534; 
 
 Wis. 168, 81 N. W. 812. Cooley v. Cecile, 8 La. Ann. 51; Abel 
 
 6 Adriatic Fire Ins. Co. v. Tread- v. Hansen, 62 Wash. 492, 114 Pac. 
 well, 108 U. S. 361, 2 S. Ct. 772, 27 182. See also Johnson v. Williams, 
 U. S. (L. ed.) 754; Tuttle v. Claflin, ; 96 Tenn. 338, 34 S. W. 434. 
 
 88 Fed. 122, 59 U. S. App. 602, 31 C. ' " Grimball v. Cruse, 70 Ala. 534. 
 C. A. 419, affirming 86 Fed. 964. l* In re Francis, 5 Kulp (Pa.) 17. 
 
 7 Foster v. Burton, 62 Vt. 239, 20 See also supra, 477, 478. 
 
 Atl. 326. IB Grimball v. Cruse, 70 Ala. 534; 
 
 SMcCrary v. Ruddick, 33 la. 521. Scott v. Dailey, 89 Ind. 477; In re 
 
 8 See infra, § 517. Gray, 7 W. N. C. (Pa.) 542. 
 
 Attys. at L. Vol. II.— 57. 
 
898 ACTIONS TO BECOVEE COMPENSATION. [§ 515 
 
 the joint employment of counsel,^* or by the ratification of an 
 employment effected by another heir or legatee," or by knowingly 
 accepting the benefits of the services render^d.^' So, the sole 
 distributee of an estate may bind it by a contract for attorney 
 fees." But a minor heir or legatee cannot be bound by the fact 
 that his guardian, without the permission of the court, entered 
 into an agreement with other heirs or legatees for the joint em- 
 ployment of an attorney.^" 
 
 § 515. Employment by Principal or Surety as Creating 
 Joint Liability. — It is well settled that the principal on a. bail 
 bond, or other such obligation, cannot, at the expense of the surety, 
 retain counsel to defend a suit brought on the bond or recogni- 
 zance, or to perform any other service in connection therewith ; ^ 
 nor can the surety on such an obligation employ counsel at the 
 expense of the principal ; " and it is immaterial, in either case, 
 that the services rendered by the attorney were beneficial to both 
 parties,' unless the facts are such that the law will imply a promise 
 to pay for them.* It has been held that where one who has been 
 arrested, and required to give bond for his appearance, leaves 
 the state, and his surety employs an attorney to prosecute an 
 appeal from the order of arrest, the testimony of the attorney 
 as to conversations had with the surety as to whether th» principal 
 would probably return to the state is admissible, in an action 
 against the surety for the attorney's services, as tending to show 
 why the surety took upon himself the expense of further litiga- 
 tion.° But the deposition of the principal as to whether he had 
 
 16 Roll V. Mason, 9 Ind. App. 651, 1 Daly v. Hines, 55 Ga. 470; Turner 
 
 37 N. E. 298 ; Adams v. Landrum, 9 v. Myers, 23 la. 391 ; Smith v. Lyford, 
 
 Ky. L. Rep. 287. See also In re 24 Me. 147. 
 Francis, 5 Kulp (Pa.) 17. « Smith v. Dougherty, 37 Vt. 530. 
 
 "See infra, § 517. And see also * Simras v. Floyd, 65 Ga. 719; 
 
 Abel V. Hansen, 62 Wash. 492, 114 Smith v. Lyford, 24 Me. 147; Smith 
 
 Pae. 182. r. Dougherty, 37 Vt. 530. 
 
 18 See infra, § 518. 4 See infra, § 518. 
 
 19 In re Hageman, 19 Phila. (Pa.) 6 Murphey v. Gates, 81 Wis. 370, 51 
 75, 45 Leg. Int. 226. N. W. 573. 
 
 20 Adams v. Landrum, 9 Ky. L. Rep. 
 287. 
 
§ 516] ACTIONS TO EECOVEE COMPEITSATIOIT. 899 
 
 employed an attorney, and how much he had agreed to pay him, 
 is properly excluded where the case proceeds upon the theory 
 that the surety had himself employed such attorney.* 
 
 § 516. Employment of Associate Counsel. — The employ- 
 ment of associate counsel by the client differs in no material 
 respect from the employment of the regular attorney, and, as 
 to counsel so employed, the principles stated in the other sections 
 of this subdivision are applicable.'' Where, however, the original 
 attorney undertakes to employ associate counsel, the situation 
 presents other questions. It has been stated heretofore that, in 
 the absence of authority from the client, the mere fact that one 
 has been engaged to conduct litigation does not warrant the em- 
 ployment of associate counsel by him at his client's expense.' 
 Therefore, in cases of this character, it is incumbent on associate 
 counsel, in actions for their compensation, to prove that their em- 
 ployment by the original attorney was authorized by the client, 
 or, if unauthorized, that it was subsequently ratified by him ; ® 
 otherwise there can be no recovery from the client; '" but the 
 
 6 Murphey v. Gates, 81 Wis. 370, 51 Iowa. — Antrobus v. Sherman, 65 la. 
 
 N. W. 573. 230, 21 N. W. 579, 54 Am. Rep. 7. 
 
 ' See supra, §§ 507-515, and see Kentucky. — Nevin v. Masonic Sav. 
 
 infra, §§ 517-522. See also Emblem Bank's Assignee, 52 S. W. 811, 21 Ky. 
 
 V. Bicksler, 34 Colo. 496, 83 Pac. 636. L. Rep. 596. 
 
 ' See supra, §§ 210, 407. Louisiana. — ^Jones v. Goza, 16 La. 
 
 9 See supra, % 408, and see also Ann. 428; Voorhies v. Harrison, 22 
 infra, § 517. La. Ann. 85. 
 
 10 California. — Porter v. Elizalde, Michigan. — Fraser v. Haggerty, 86 
 125 Cal. 204, 57 Pac. 899. Mich. 521, 49 N. W. 616. 
 
 Georgia. — Mathews v. Giles, 108 Ga. Minnesota. — White v. Eseh, 78 
 
 364, 33 S. E. 1006. Minn. 264, 80 N. W. 976. 
 
 Illinois. — Price v. Hay, 132 111. 543, Islew Jersey. — Bentley v. Fidelity & 
 
 24 N. E. 620, affirming 29 111. App. Deposit Co. of Maryland, 75 N. J. L. 
 
 552, 31 111. App. 293; Evans v. Mohr, 828, 15 Ann. Cas. 1178, 69 Atl. 202, 
 
 153 111. 561, 39 N. E. 1083 ; Continen- 127 Am. St. Rep. 837. 
 
 tal Adjustment Co. v. Hoffman, 123 Weio York. — Cook v. Ritter, 4 E. D. 
 
 111. App. 69. Smith 253 ; Macniffe v. Ludington, 67 
 
 Indiwna. — Brown v. Underbill, 4 How. Pr. 13, 13 Abb. ST. Cas. 407; In 
 
 Ind. App. 77, 30 N. E. 430; Moore v. re Bleakley, 5 Paige 311; Kneeland 
 
 Orr, 10 Ind. App. 89, 37 N. E. 554. v. Hurdy, 97 N. Y. S. 957. 
 
900 ACTIONS TO BECOVEE COMPENSATION. [§ 517 
 
 attorney who employed them will, in the absence of an express 
 agreement to the contrary, be responsible for their fees.'* 
 
 If, however, the authority of the original attorney to effect 
 the employment of associate counsel is established, the client will 
 be liable for their fees,*^ although there was a secret agreement 
 between him and the original attorney that such services should 
 be paid for by the latter. *' So, an attorney who is both agent and 
 counsel for a party in managing a suit, may employ assistant 
 counsel at the charge of his client.'* And even where the original 
 attorney has employed associate counsel without authority, the 
 client will be responsible for his compensation if he accepts the 
 benefits of his services with full knowledge of the facts; '* but the 
 mere failure of the client to object to the rendition of such services 
 will not, of itself, create a liability on his part.'^ 
 
 § 517. Ratification of Unauthorized Employment. — 
 
 It is well settled that the client may ratify the unauthorized em- 
 ployment of counsel or associate counsel to act for him, and, in 
 this manner, render himself responsible for their fees as effec- 
 tively as if he had personally conducted the negotiations leading 
 up to the employment." This is in accord with the principles, 
 
 Vermont. — Paddock v. Colby, 18 Vt. l* Briggs v. Georgia, 10 Vt. 68. 
 
 485 ; Willard v. Danville, 45 Vt. 93. And see also supra, § 510. 
 
 11 Kersey v. O'Day, 173 Mo. 580, 73 16 Alabama.— King v. Pope, 28 Ala. 
 
 S. W. 481; Scott V. Hoxsie, 13 Vt. 50. 601. 
 
 13 Illinois. — Price v. Hay, 132 111. Arkansas. — Boynton v. Brown, 103 
 
 543, 24 N. E. 620, affirming 29 111. Ark. 513, 145 S. W. 242. 
 
 App. 552, 31 111. App. 293. Indiana. — Hogate v. Edwards, 65 
 
 Indiana. — ^Nave v. Tucker, 70 Ind. Ind. 372. 
 
 15. 7owa. — Dorr v. Dudley, 135 la. 20, 
 
 /OMTO.— McCrary v. Ruddick, 33 la. 112 N. W. 203. 
 
 521. Minnesota. — ^White v. Esch, 78 
 
 Massachusetts. — Aldrich v. Brown, Minn. 264, 80 N. W. 976. 
 
 103 Mass. 527. Tennessee. — Yerger v. Aiken, 7 
 
 Nebraska. — Sedgwick v. Bliss, 23 Baxt. 539; Callender v. Turpin, 61 S. 
 
 Neb. 617, 37 N. W. 483. W. 1057. 
 
 Vermont. — Briggs v. Georgia, 10 Texas. — Smith v. Lipscomb, 13 Tex. 
 
 Vt. 68. And see also supra, § 409. 532. And see also imfra, § 518. 
 
 13 McCrary v. Ruddick, 33 la. 521 ; 16 Young v. Crawford, 23 Mo. App. 
 
 Brigham v. Foster, 7 Allen (Mass.) 432; Briggs v. Georgia, 10 Vt. 68. 
 
 419. "Hood V. Ware, 34 Ga. 328; Cloud 
 
§ 517] ACTIONS TO EECOVER COMPBNSATIOIT. 901 
 
 stated heretofore, applicable to the ratification of the unauthor- 
 ized acts of attorneys who have been regularly retained.*' Thus, 
 where some of several persons who were interested in having a 
 will set aside, employed attorneys for that purpose, and pUt for- 
 ward one of their number as the nominal plaintiff, supposing that 
 they were authorized to bind all the parties for attorney's fees, 
 and the others, when informed of what had been done, took part 
 in the preparation of the case, consulted with the attorneys, 
 and made suggestions to them as to the trial, it was held 
 that they had ratified the employment.** So, where certain attor- 
 neys, at the request of a town council, addressed a meeting of the 
 citizens, explaining the terms upon which the holders of town 
 bonds proposed to cancel them, and such proposal was accepted by 
 the meeting, and the attorneys were directed to prepare an ordi- 
 nance for the purpose of consummating the settlement, and the 
 town council afterwards adopted the ordinance, and the bonds were 
 taken up in pursuance thereof, and the whole matter adjusted 
 with the assistance of the attorneys, it was held that they were 
 entitled to recover pay from the town for their services.^" And 
 where a railroad company employed attorneys in a particular 
 case, and before the determination thereof the road was leased 
 and operated by another company, the fact that the later company 
 continued to receive the services is sufficient to sustain a finding 
 that it ratified the original employment.* Even silence on the part 
 of the client, when he should speak, may amount to a ratification ; 
 thus where a director of a railroad company employed an attor- 
 ney, and authorized him to engage local counsel to attend a suit 
 in which the company was interested, it was held that the con- 
 tinued silence of the director, after receiving from the original 
 attorney a report of his employment of the local counsel, was a rati- 
 fication b^- him, and through him by the corporation, of the ac- 
 tion of the original attorney.^ Evidence of ratification is, of 
 
 V. Taliaferro County, 138 Ga. 214, 74 20 New Athena -o. Thomas, 82 111. 
 
 S. E. 1074; Cooper v. Hamilton, 52 259. 
 
 111. 119; McKay v. J. M. E. Atkinson l International & G. N. R. Co. v. 
 
 & Co., 55 Wash. 591, 104 Pae. 806. Clark, 81 Tex. 48, 16 S. W. 631. 
 
 18 See supra, §§ 211-214. 2 Pittsburgh, C. & St. L. R. Co. v. 
 
 19 Holmes v. Holland, 11 Ohio. Dee. Woolley, 12 Bush (Ky.) 451. 
 (Reprint) 768, 29 Cine. L. Bui. 115. 
 
902 
 
 ACTIONS TO EEOOVEE COMPENSATION. 
 
 [§ 518 
 
 course, subject to rebuttal by tbe defendant.' And even where rat- 
 ification has been established, the client will not be bound by 'a 
 contract entered into for him by the unauthorized person, fixing 
 the amount of the attorney's compensation, unless it is also shown 
 that he had knowledge thereof.* 
 
 § 518. Acceptance of Benefits of Attorney's Services. — 
 
 It is well settled that when an attorney renders professional serv- 
 ices for another with his consent, or the latter stands by and sees 
 the attorney performing such services for him, which are beneficial 
 in their nature, overlooks them as they progress, and does not in- 
 terfere to prevent or forbid their performance, but appropriates 
 the benefits thereof to himself, and there is no express employ- 
 ment, the law, in the interest of justice and right, will imply a 
 promise, contemporaneous with the rendering of the services, on 
 the part of the person for whose benefit they are rendered, to pay 
 a reasonable compensation therefor.* What is a reasonable fee in 
 
 3 Saxton V. Harrington, 52 Neb. 
 300, 72 N. W. 272. 
 
 4 Abel V. Hansen, 62 Wash. 492, 114 
 Pac. 182. 
 
 ^Alabama. — Davis v. Walker, 131 
 Ala. 204, 31 So. 554. 
 
 California. — ^Kelly v. Ning Yung 
 Benev. Assoc, 2 Cal. App. 460, 84 Pae. 
 321. 
 
 Georgia. — Hood v. Ware, 34 Ga. 
 328 ; Cloud v. Taliaferro County, 138 
 Ga. 214, 74 S. E. 1074. 
 
 Illinois. — Cooper v. Delavan, 61 111. 
 96; Siegel v. Hanchett, 33 111. App. 
 634. 
 
 Indiana. — Miles v. De Wolf, 8 Ind. 
 App. 176, 34 N. E. 114; Moore v. Orr, 
 10 Ind. App. 89, 37 N. E. 554. 
 
 Iowa. — Turner v. Myers, 23 la. 391; 
 MoCrary v. Ruddick, 33 la. 521; 
 Hudspeth v. Yetzer, 78 la. 11, 42 N. 
 W. 529; Door v. Dudley, 135 la. 20, 
 112 2Sr. W. 203. 
 
 Kentucky. — ^Pittsburgh, etc., R. Co. 
 V. WooUey, 12 Bush 451; Cincinnati 
 Sav. Bank v. Benton, 2 Met. 240; 
 Rarrick v. Clay, 6 Ky. L. Rep. 360. 
 
 Maryland. — ^Neighbors v. Maulsby, 
 41 Md. 478 ; Davis v. Gemmell, 73 Md. 
 530, 21 Atl. 712. 
 
 Michigan. — Lindner v. Hine, 84 
 Mich. 511, 48 N. W. 43; Eraser v. Hag- 
 gerty, 86 Mich. 521, 49 N. W. 616. 
 
 Missouri. — Boyd v. Chicago & A. K. 
 Co., 84 Mo. 615; Trimble v. Texar- 
 kana & Ft. S. R. Co., 199 Mo. 44, 97 
 S. W. 164; Trimble v. Guardian Trust 
 Co., 244 Mo. 228, 148 S. W. 934. 
 
 Nevada. — Mitchell v. Bromberger, 
 1 Nev. 604. 
 
 New Ha/mpsMre. — Goodall v. Bedel, 
 20 N. H. 205. 
 
 New York. — Clute v. Robison, 38 
 Hun 283; Fore v. Chandler, 34 Misc. 
 786, 69 N. Y. S. 849; Bogardus v. Liv- 
 ingston, 7 Abb. Pr. 428; Burghart v. 
 Gardner, 3 Barb. 64; Wright v. Smith, 
 
§ 519] ACTIONS TO EECOVEE COMPENSATION. 903 
 
 such cases has been considered heretofore ; ° the client need not, 
 however, pay the amount, or in the manner, prescribed by a con- 
 tract under which the attorney was retained by other interested 
 persons, in the absence of evidence that he sanctioned such con- 
 tract.'' Where the services are performed under a contract with 
 the person against whom the suit for compensation has been 
 brought, the acceptance of beneficial services is immaterial ; ' but 
 where several persons are interested, the attorney may look for 
 payment not only to the person who employed him, but also to 
 the person actually benefited.* 
 
 § 519. Sufficiency of Acceptance of Beneficial Services. — 
 
 It is equally well settled, however, that one person cannot make 
 another his debtor without his consent, either express or implied •, 
 and, therefore, the mere fact that professional services inure to 
 the benefit of one who did not contract for them, or consent to 
 their rendition in his behalf, or lead counsel to believe by any 
 word or act that he would pay for them, will not create a liability 
 on his part for the attorney's compensation.^" This is particularly 
 true where the facts and circumstances presented not only repel 
 
 ]3 Barb. 414; Hotchkiss v. Le Roy, 9 8 Simmons v. Davenport, 140 N. C. 
 
 Johns. 142; Ward v. Lee, 13 Wend 41. 407, 53 S. E. 225. 
 
 OUo. — Holmes v. Holland, 11 Ohio 9 Kellogg v. Reese, 14 Civ. Proc. 283, 
 
 Dee. (Reprint) 768, 29 Cine. L. Bui. l N. Y. S. 291. 
 
 ^13- ^''Alabama. — Humes v. Decatur 
 
 Rhode Island— Ames, v. Potter, 7 Land Improvement & Furnace Co., 98 
 
 ^- I- 283- Ala. 461, 13 So. 368. 
 
 Tennessee.— Yer^ev v. Aiken, 7 Georj,m.— Simms v. Floyd, 65 Ga. 
 
 Baxt. 539; Hill v. Childress, 10 Yerg. ,j^g 
 515. 
 
 Texas. — ■Fore v. Chandler, 24 Tex. 
 
 Illinois. — Chicago, St. C. & M. R. 
 Co. V. Lamed, 26 HI. 220. 
 
 146; Ector v. Wiggins, 30 Tex. 55, ^ ^. „ , ,. i,«- „„ x , 
 
 T , ,. 1 ^ >T x. /■I ,-« 1 Indiana. — Hersleb v. Moss, 28 Ind. 
 International & G. N. R. Co. v. Clark, 
 
 81 Tex. 48, 16 S. W. 631. ^^*' ^^^^' "" °^ W°"' ^ ^"'*- ^PP" 
 
 WasUngton.-M.-K^y v. Atkinson, 1^3, 34 N. E. 114; Cleveland, C. C. & 
 
 55 Wash. 591, 104 Pac. 806. ^^- ^- ^- ^°- ^'- Shrum, 24 Ind. App. 
 
 WtscoTCsm.— Felker v. Haight, 33 ^6, 55 N. E. 515. 
 
 Wis. 259. Kansas. — Muscott v. Stubbs, 24 
 
 6 See supra, §§ 447-449. Kan. 520. 
 
 7 Abel t). Hansen, 62 Wash. 492, 114 Kentucky. — Patterson v. Fleenor, 
 Pac. 182. 89 S. W. 705. 
 
904 ACTIONS TO EECOVEE COMPENSATION. [§ 519 
 
 the idea of an implied promise to pay for the services, but, on the 
 contrary, are entirely consistent with the absence of such a prom- 
 ise.'* Thus, where each of several joint litigants has employed 
 counsel in his own behalf, the fact that one of them assumed to 
 act for the others, without authority, will not warrant the recovery 
 of compensation by his attorney from those who did not engage 
 his services, even though such services were, in fact, beneficial to 
 all of them.*^ /isTor will a party for whom an attorney acts with- 
 out authority, be responsible for the attorney's compensation 
 where it appears that his services were rendered upon the credit 
 of another person,*' or where the attorney was informed that such 
 services would not be paid for.** Nor does the presence of a pros- 
 ecutor, while an attorney was engaged in rendering professional 
 services on the part of the government in a criminal proceeding, 
 raise a presumption that the prosecutor promised to pay for such 
 services.*^ So, the fact that the president of a village knew that 
 attorneys, employed by the village to defend an action, were pre- 
 paring to take an appeal, M'ill not amount to an assent thereto by 
 the village, so as to render it liable for the attorneys' services in 
 connection with the prosecution of such appeal.** In some juris- 
 dictions the rule that one will be liable for the services of coun- 
 sel, the benefits of which he has accepted, does not prevail.*" 
 
 Minnesota. — White v. Esch, 78 18 Smith v. Lyford, 24 Me. 147. 
 
 Minn. 264, 80 N. W. 976. 14 Holmes v. Holland, 11 Ohio Dec. 
 
 Missouri. — Trimble v. Kansas City, (Reprint) 768, 29 Cine. L. Bui. 115. 
 Shreveport & G. R. Co., 201 Mo. 372, 16 Millett v. Hayford, 1 Wis. 401. 
 
 100 S. W. 7. 16 Hooker v. Brandon, 75 Wis. 8, 43 
 
 New York. — Burghart v. Gardner, N. W. 741. 
 3 Barb. 64; Hotehkiss v. Le Roy, 9 i'J Louisiana. — Roselius v. Dela- 
 
 Johns. 142. chaise, 5 La. Ann. 481, 52 Am. Dec. 
 
 OMo. — Holmes v. Holland, 11 Ohio 597; Cooley v. Cecile, 8 La. Ann. 51; 
 
 Dec. (Reprint) 768, 29 Cine. L. Bui. Wailes v. Succession of Brown, 27 
 
 115. La. Ann. 411 ; Forman v. Sewerage & 
 
 Pennsylvania. — Jones v. Woods, 76 Water Board, 119 La. 49, 12 Ann. Cas. 
 
 Pa. St. 410. 773, 43 So. 908; Dreifus v. Colonial 
 
 South Carolina. — Westmorland v. Bank & Trust Co., 127 La. 1086, 54 
 
 Martin, 24 S. C. 238. So. 358; In re McPherson's Estate, 
 
 11 Holmes v. Holland, 11 Ohio Dec. 129 La. 182, 55 So. 756. 
 (Reprint) 768, 29 Cine. L. Bui. 115. 
 
 18 See supra, § 513. 
 
§ 520] ACTIONS TO EECOVEE COMPENSATION. 905 
 
 § 520. Emplojmient by One Spouse as Binding the Other 
 Generally. — As a general rule, the employment of an attorney by 
 the husband will not, in the absence of an express or implied au- 
 thority so to do, create a liability on the part of the wife for the 
 attorney's coAipensation.^' Nor, under like circumstances, will 
 the husband be liable for the fees of counsel retained by the wife,^' 
 excepting where such services are deemed to be necessary for the 
 wife's maintenance or protection.^" There is, necessarily per- 
 haps, some conflict of opinion as to when legal advice becomes such 
 a necessity as to make the husband responsible.* It has been held 
 that a husband will be liable for the compensation of counsel en- 
 gaged by the wife in an action, either legal or equitable, against 
 him, where it appears that she was forced to leave her home be- 
 cause of ill-treatment,^ or where she has been deserted by her 
 husband.^ So, wherever it is necessary for the safety of a wife to 
 enter a complaint against her husband for a breach of the peace, 
 he will be liable for the fees of counsel employed by her for that 
 purpose.* And the husband has also been held to be responsible 
 for the compensation of an attorney employed by the wife to de- 
 fend her in a criminal prosecution, whether it was instituted by 
 himself,^ or by some third person ; ^ and, a fortiori, the husband 
 will be liable for the cost of defending his wife where the offense 
 charged was committed with his knowledge and consent.'' But the 
 husband is not liable for an attorney's services rendered, at the in- 
 stance of his wife, in criminal proceedings against himself, be- 
 
 iSAltkrug V. Horowitz, 111 App. 3 Wilson v. Ford, L. K. 3 Excli. 
 
 Div. 420, 97 N. Y. S. 716. See also (Eng.) 63. 
 
 Whitesell v. New Jersey & H. R. R. 4 Shepherd v. Mackoul, 3 Campb. 
 
 & F. Co., 68 App. Div. 82, 74 N. Y. S. (Eng.) 326; Turner v. Rookes, 10 Ad. 
 
 217. & El. 47, 37 E. C. L. 35; Williams v. 
 
 l9Plyinat v. Brush, 46 Minn. 23, 48 Monroe, 18 B. Mon. (Ky.) 514; Mor- 
 
 N. W. 443. ris v. Palmer, 39 N. H. 123. 
 
 20 Grindell v. Godmond, 5 Ad. & El. s Conant v. Burnham, 133 Mass. 
 
 755, 31 E. C. L. 431; Sherwin v. Ma- 503, 43 Am. Rep. 532; Warner v. Hei- 
 
 ben, 78 la. 467, 43 N. W. 292; Smith den, 28 Wis. 517, 9 Am. Rep. 515. 
 
 V. Davis, 45 N. H. 566. 6 Artz j;.' Robertson, 50 111. App. 27. 
 
 1 See the two sections following. T Shepherd V. Mackoul, 3 Campb. 
 
 8 Williams v. Fowler, 1 M'Clel. & Y. (Eng.) 326. 
 (Eng.) 269. 
 
906 
 
 ACTIONS TO RECOVEE COMPENSATION. 
 
 [§ 521 
 
 cause, in such cases, the government, and not the wife, is the real 
 prosecutor.' 
 
 § 521. In Actions for Divorce. — The general rule in the 
 United States is that a husband is not liable, in an independent 
 action, for counsel fees incurred by his wife in the prosecution 
 or defense of divorce proceedings,' or for counseling and advising 
 her in reference to a suit for divorce.*" Nor does the claim for 
 compensation for professional services rendered to the wife in a 
 divorce suit, derive any strength from the fact that the application 
 for divorce was connected with a claim for the custody of minor 
 children.** This rule has been predicated on two theories: the 
 first being that the duty of providing necessaries for the wife is 
 strictly marital, and is imposed by the common law in reference 
 only to a state of coverture, and not of divorce ; *^ the second 
 theory, however, rests upon the ground of ample power in the di- 
 vorce court to make a proper allowance for counsel fees.*' In 
 some jurisdictions the rule has no application; thus, in Texas it is 
 
 8 Grindell «. Godmond, 5 Ad. & El. 
 755, 31 E. C. L. 431 ; Conant v. Burn- 
 ham, 133 Mass. 503, 43 Am. Rep. 532; 
 Smith V. Davis, 45 N. H. 566; Mc- 
 Quhae v. Rey, 2 Misc. 476, 22 ^T. Y. S. 
 175, affirmed 3 Misc. 550, 23 N. Y. S. 
 16. 
 
 9 Indiana. — McCullough v. Robin- 
 son, 2 Ind. 630. 
 
 Kentucky. — Williams v. Monroe, 18 
 B. Mou. 514. 
 
 Massadhusetts. — Coffin v. Dunham, 
 8 Gush. 404, 54 Am. Dec. 769. 
 
 Michigan. — Wolcott v. Patterson, 
 100 Mich. 227, 58 N. W. 1006, 43 Am. 
 St. Rep. 456, 24 L.R.A. 629. 
 
 Missouri. — Musick v. Dodson, 76 Mo. 
 624, 43 Am. Rep. 780; Hamilton u. 
 Salisbury, 133 Mo. App. 718, 114 S. 
 W. 563. 
 
 Hew HampsMre. — Morrison v. Holt, 
 42 N. H. 480, 80 Am. Dec. 120. 
 
 New York. — Phillips v. Simmons, 
 20 How. Pr. 342, 11 Abb. Pr. 287. 
 
 Ohio. — ^Dorsey v. Goodenow, Wright 
 120; Sherer v. Price, 2 Ohio Cir. Dec. 
 61, 3 Ohio Cir. Ct. 107. 
 
 Tennessee. — Thompson v. Thompson, 
 3 Head 527. 
 
 10 Kincheloe v. Merriman, 54 Ark. 
 557, 16 S. W. 578, 26 Am. St. Rep. 60. 
 
 11 Shelton v. Pendleton, 18 Conn. 
 417. 
 
 ^^ Alabama. — Pearson v. Darring- 
 ton, 32 Ala. 227. 
 
 Connecticut. — Shelton v. Pendleton, 
 18 Conn. 417; Cooke v. Newell, 40 
 Conn. 596. 
 
 Illinois. — ^Dow v. Eyster, 79 111. 
 254. 
 
 New Hampshire. — Morrison v. Holt, 
 42 N. H. 478, 80 Am. Dec. 120. 
 
 Vermont. — Wing v. Hurlburt, 15 
 Vt. 607, 40 Am. Dec. 695. 
 
 13 Georgia.— Glenn v. Hill, 50 Ga. 
 94, distinguishing Sprayberry v. Merk, 
 30 Ga. 81, 76 Am. Dec. 637. 
 
 Kentucky. — Williams v. Monroe, 18 
 
§ 521] 
 
 ACTIONS TO EECOVEE COMPENSATIOIT. 
 
 907 
 
 well settled that counsel for the wife in a divorce proceeding can 
 recover, in an independent action against the husband, a reason- 
 able fee for his services in the divorce suit, where there was rea- 
 sonable cause for bringing the suit, and it was brought in good 
 faith.** A similar rule prevails in Maryland '* and in Iowa, pro- 
 
 B. Mon. 514, distmguishing Billing 
 V. Pilcher, 7 B. Mon. 458, 46 Am. Dec. 
 523. 
 
 Missouri. — Isbell v. Weiss, 60 Mo. 
 App. 54. 
 
 Nebraska. — Burnham v. Tizard, 31 
 Neb. 781, 48 N. W. 823; Yeiser v. 
 Lowe, 50 Neb. 310, 69 N. W. 847. 
 
 New Hampshire. — Ray v. Adden, 50 
 N. H. 82, 9 Am. Rep. 175. 
 
 New Jersey. — Westcott v. Hinck- 
 ley, 56 N. J. L. 343, 29 Atl. 154. 
 
 Ohio. — ^Dorsey v. Goodenow, Wright 
 120. 
 
 Pennsylvania. — Graves v. Cole, 19 
 Pa. St. 171. 
 
 South Dakota. — Sears v. Swenson, 
 22 S. D. 74, 115 N. W. 519. 
 
 Washington. — Zent v. Sullivan, 47 
 Wash. 315, 15 Ann. Gas. 19, 91 Pac. 
 1088, 13 L.E.A.(N.S.) 244. 
 
 Wisconsin. — Clarke v. Burke, 65 
 Wis. 359, 27 N. W. 22, 56 Am. Rep. 
 631. 
 
 Where the parties have been recon- 
 ciled, whether the court, even in a 
 divorce action, will allow the wife's 
 counsel an allowance for his services 
 in a divorce action begun by her, de- 
 . pends entirely on the local statute 
 law. In some jurisdictions such al- 
 lowances may be made. Davia v. 
 Davis, 141 Ind. 367, 40 N. E. 803; 
 Courtney v. Courtney, 4 Ind. App. 
 22], 30 N. E. 914; Powell v. Lilly, 68 
 S. W. 123, 24 Ky. L. Rep. 193; Mc- 
 Makin t. Wickliflfe, 16 Ky. L. Rep. 
 240; Beaulieu r. Beaulieu, 114 Minn. 
 511, 131 N. W. 481; Fullhart v. Full- 
 hart, 109 Mo. App. 705, 83 S. W. 541. 
 
 In other jurisdictions it has been 
 held that where the parties to an ac- 
 tion for divorce have become recon- 
 ciled, and request a dismissal of the 
 suit, the court has no power there- 
 after to grant an order for the pay- 
 ment of the wife's counsel fees. Rey- 
 nolds V. Reynolds, 67 Cal. 176, 7 Pac. 
 480; McCuUoch v. Murphy, 45 111. 
 256; Kuntz v. Kuntz, 80 N. J. Eq. 429, 
 83 Atl. 787 ; Chase v. Chase, 65 How. 
 Pr. (N. Y.) 306. 
 
 And in Bialy v. Bialy, 167 Mich. 
 559, Ann. Cas. 1913A 800, 133 N. W. 
 496, it was said: "Our conclusion is 
 that although counsel for the wife, 
 who is complainant in a bill for di- 
 vorce, may obtain an order for the 
 payment of fees pendente lite, on 
 making a proper case, yet if the con- 
 troversy is settled by the parties by 
 the voluntary return of the wife to 
 the husband, and the abandonment 
 of the suit, before counsel have pro- 
 cured such order, their right to it is 
 gone. They should have procured the 
 order while the suit was being prose- 
 cuted, and if they fail to do so their 
 application will be too late.'' 
 
 14 Ceccato v. Deutschman, 19 Tex. 
 Civ. App. 434, 47 S. W. 739 ; Bord v. 
 Stubbs, 22 Tex. Civ. App. 242, 54 S. 
 W. 633; Dodd v. Hein, 26 Tex. Civ. 
 App. 164, 62 S. W. 811; Branch v. 
 Kleinecke, 3 Willson Civ. Cas. Ct. 
 App. § 106; McClelland v. McClel- 
 land, 37 S. W. 350. 
 
 l&McCurley v. Stockbridge, 62 Md. 
 422, 50 Am. Rep. 229. 
 
908 ACTIONS TO KECOVEE COMPENSATION. [§ 521 
 
 viding, of course, that such services were necessary.'' In England 
 the wife's attorney may recover from the husband where she rea- 
 sonably institutes a suit for a divorce, or a separation, on the 
 ground of cruelty and adultery, or of cruelty alone." And in 
 other jurisdictions the husband is held to be liable, in an inde- 
 pendent action, for the compensation of counsel engaged by the 
 wife to defend an action for divorce brought by the husband." 
 But it seems to be conceded, even in those states, that where counsel 
 services are unnecessary, or where the wife is able to pay for them, 
 or where an allowance has been made for them, and, probably, 
 where the wife is in the wrong, such an action cannot be main- 
 tained. '' In West Virginia it has been held that the husband will 
 be liable for counsel fees in divorce proceedings instituted by the 
 wife on the ground of the husband's actual cruelty, but that no 
 such liability exists where a divorce is sought for any other rea- 
 son, even though it be statutory cruelty.^* But in all jurisdic- 
 tions the husband may, in such cases, bind himself by an agree- 
 ment to pay the attorney employed by his wife, either a stipulated 
 or a reasonable sum for his services in the suit; and such a claim 
 is enforceable because it grows out of a moral as well as a legal 
 obligation resting upon him. Moreover, such an agreement need 
 not be in writing, for the reason that it recognizes the husband's 
 obligation or liability, and assumes the payment of his own and 
 not "another person's" debt or liability.' 
 
 16 Preston v. Johnson, 65 la. 285, 104 E. C. L. 332; Taylor v. Hail- 
 
 21 N. W. 606; Sherwin v. Maben, 78 stone, 52 L. J. Q. B. 301, 47 L. T. N. 
 
 la. 467, 43 N. W. 292; Stockman v. S. 440; In re Hooper, 2 De G. J. & S. 
 
 Whitmore, 140 la. 378, 118 N. W. 91, 33 L. J. Ch. 300; Baylis v. Wat- 
 
 403; Gordon V. Brackey, 143 la. 102, kins, 10 Jur. N. S. 114. 
 
 120 2sr. W. 83, 136 Am. St. Eep. 751, 18 Porter v. Briggs, 38 la. 166, 18 
 
 practically overruling Johnson v. Wil- Am. Rep. 27 ; Clyde v. Peavy, 74 la. 
 
 liams, 3 G. Greene 97, 54 Am. Dec. 47, 36 N. W. 883; Gossett v. Patten, 
 
 491. 23 Kan. 341. 
 
 IT Ottaway v. Hamilton, 3 C. P. D. W Sherwin v. Maben, 78 la. 467, 43 
 
 393; Brown v. Ackroyd, 5 El. & Bl. N. W. 292; Gossett v. Patten, 23 Kan. 
 
 819, 85 E. C. L. 819; Stocken v. Pat- 341. 
 
 trick, 29 L. T. N. S. 507. See also 80 Peck v. Marling's Adm'r, 22 W. 
 
 Nairne v. Nairne, 85 L. T. N. S. 649; Va. 708. 
 
 Rice V. Shepherd, 12 C. B. N. S. 332, l Stein v. Blake, 56 HI. App. -525. 
 
§ 522] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 909 
 
 § 522. In Other Matrimonial Actions. — In the absence of 
 statutory regulation, a husband's liability for the fees of counsel 
 employed by his wife depends, as stated heretofore, on whether 
 the services rendered can be classed as "necessaries." If so, the 
 husband will be liable ; if not, he will not be liable.* In most ju- 
 risdictions, however, matters of this character are governed by 
 local statutes. Thus, it has been provided that the wife's attorney 
 may recover compensation from the husband for services rendered 
 in suits for alimony,^ or for the restitution of conjugal rights,* or 
 for support.* But a criminal prosecution against a husband for 
 the nonsupport of his wife would not, in the absence of express 
 statutory authority therefor, render him liable for the services of 
 her counsel in conducting the prosecution.^ So, under some stat- 
 utes, the court may require the husband to pay such counsel fees 
 as are necessary to enable the wife to carry on, or defend, an ac- 
 tion for separation.'' But, as a rule, sxich compensation must be 
 
 2 See supra, § 520. 
 
 8 Kiddle v: Kiddle, 90 Neb. 248, 
 Ann. Cas. 3913A 796, 133 N. W. 181, 
 36 L.R.A.(N.S.) 1001; N. Y. Code 
 Civ. Pro. § 1769. 
 
 Under the Ontario statute (Rev. 
 St. Ont. i;. 408, § 48), providing that 
 "in no suit for alimony, in whicli the 
 plaintiff fails to obtain a decree for 
 alimony, shall any costs be decreed 
 to be paid by the defendant beyond 
 the amount of the cash disbursements 
 properly made by the plaintiff's solic- 
 itor," it has been held that where, 
 pending a suit for alimony, the plain- 
 tiil and defendant resume cohabita- 
 tion, the plaintiff's solicitor is en- 
 titled only to an order for his cash 
 disbursements, and is not entitled to 
 full costs. Ringrose v. Ringrose, 10 
 Ont. Pr. 299, affirmed 10 Ont. Pr. 596, 
 expressly overruling Keith v. Keith, 
 25 Grant Ch. (U. C.) 110, and in 
 effect overruling Leonard v. Leonard, 
 
 9 Ont. Pr. 450, and Moore v. Moore, 
 
 10 Ont. Pr. 284. 
 
 4 Wilson V. Ford, L. R. 3 Exch. 
 (Eng.) 63. 
 
 6 Williams v. Monroe, 18 B. Mon. 
 (Ky.) 514. 
 
 SMcQuhae v. Rey, 2 Misc. 476, 22 
 N. Y. S. 175, affirmed 3 Misc. 550, 
 23 N. Y. S. 16. And see also supra, 
 § 520 note 8. 
 
 7 England. — See the English cases 
 cited in the preceding section at note 
 17. 
 
 Nebraska. — Kiddle v. Kiddle, 90 
 Neb. 248, Ann. Cas. 1913A 796, 133 
 N. W. 181, 36 L.R.A.(N.S.) 1001. 
 
 New York.—N. Y. Code Civ. Pro. 
 1769; Naumer v. Gray, 28 App. Div. 
 529, 51 N. Y. S. 222, rehea/ring denied 
 32 App. Div. 627, 53 N. Y. S. 1110; 
 Naumer v. Gray, 41 App. Div. 361, 
 58 N. Y. S. 476; Hays v. Ledman, 28 
 Misc. 575. 59 N. Y. S. 687; Wood v. 
 Wood, 30 Misc. 50, 62 N. Y. S. 854; 
 Langbein v. Schneider, 27 Abb. N. 
 Cas. 228, 16 N. Y. S. 943. See also 
 Damman v. Bancroft, 43 Misc. 678, 
 88 N. Y. S. 386. 
 
910 
 
 ACTIOITS TO R.ECOVEE COMPENSATION. 
 
 [§ 523 
 
 applied for during the pendency of the action or proceeding for 
 separation; it cannot be recovered after a decree of absolute di- 
 vorce between the parties has been entered," nor, after the husband's 
 death, can such a liability be enforced as against the representa- 
 tives of his estate.® 
 
 Proof of Performance. 
 
 § 523. Necessity of Proving Performance. — An attorney 
 who agrees with his client to perform specific services must, in or- 
 der to warrant the recovery of compensation therefor, prove a per- 
 formance of the contract on his part,^" within a reasonable time 
 
 In Ladd v. Lynn, 2 M. & W. (Eng.) 
 265, it was said "that a deed of sep- 
 aration cannot be called necessary for 
 the wife." 
 
 8 Hahn v. Rogers, 34 Misc. 549, 69 
 N. Y. S. 926. 
 
 9 Kellogg V. Stoddard, 89 App. Div. 
 137, 84 N. Y. S. 1015, reversing 40 
 Misc. 92, 81 N. Y. S. 275. 
 
 10 United States. — Baxter v. Bill- 
 ings, 83 Fed. 790, 49 U. S. App. 767, 
 28 C. C. A. 85 ; Lazarus v. McDonald, 
 97 Fed. 121. 
 
 Arkansas. — Pennington v. Under- 
 wood, 56 Ark. 53, 19 S. W. 108. 
 
 California. — Emeric v. Alvarado, 90 
 Cal. 444, 27 Pac. 356; Lavenson v. 
 Wise, 131 Cal. 369, 63 Pac. 622. 
 
 Detetcare.— Bayard v. McLane, 3 
 Har. 139. 
 
 District of Colicmiia. — Fague v. 
 Corcoran, 3 Mackey 199; Blanken- 
 ship V. Cowling, 31 App. Cas. 626. 
 
 Georgia. — -Swift v. Register, 97 Ga. 
 446, 25 S. E. 315. 
 
 Indiana. — Scobey v. Ross, 5 Ind. 
 445; McDowell v. Baker, 29 Ind. 481. 
 
 Kentucky. — Wilson v. Barnes, 13 
 B. Mon. 330. 
 
 Louisiana. — In re Labauve's Suc- 
 cession, 34 La. Ann. 1191. 
 
 Michigan. — Smedley v. Grand Ha- 
 ven, 125 Mich. 424, 84 N. W. 626, 7 
 Detroit Leg. N. 586. 
 
 Mississippi. — Holly Springs v. Man- 
 ning, 55 Miss. 380. 
 
 Montana. — Harris v. Root, 28 Mont. 
 159, 72 Pac. 429; Foley v. Klein- 
 schmidt, 28 Mont. 198, 72 Pac. 432. 
 
 Jf.eio York. — Thorn v. Beard, 135 
 N. Y. 643 mem., 32 N. E. 140; Cole 
 V. Roby, 61 Hun 624 mem., 16 N. Y. 
 S. 20; Richards v. Washburn, 28 App. 
 Div. 109, 50 N. Y. S. 885, affirmed 163 
 N. Y. 585, 57 N. E. 1123; Whitesell 
 i>. New Jersey & H. R. R. & F. Co. 68 
 App. Div. 82, 74 N. Y. S. 217; People 
 V. New York Bldg.-Loan Banking Co., 
 112 App. Div. 167, 98 N. Y. S. 290; 
 Roake v. Palmer, 119 App. Div. 64, 
 103 N. Y. S. 863; Haire v. Hughes, 
 127 App. Div. 530, 111 N. Y. S. 892, 
 affirmed 197 N. Y. 514, 90 N. E. 1J59; 
 Smidt V. Dessar, 13 Misc. 254, 34 N. 
 Y. S. 158, 68 N. Y. St. Rep. 205; 
 Bittiner v. Gomprecht, 28 Misc. 218, 
 29 Civ. Proc. 300, 58 N. Y. S. 1011; 
 Stow V. Hamlin, 11 How. Pr. 452; 
 Myers v. Bachrach, 110 N. Y. S. 872; 
 Mains v. Getchcn, 111 N. Y. S. 598. 
 
 Tiorth Carolina. — Johnston v. Cut- 
 chin, 133 N. C. 119, 45 S. E. 522. 
 
§ 524] ACTIONS TO EECOVEE COMPEITSATIOM'. 911 
 
 and before the termination of the employment,*^ or show some 
 sufficient excuse for nonperformance, as, for instance, the prema- 
 ture termination of his employment by the client,*^ or that per- 
 formance was rendered impossible for some other reason.*' The law 
 will not presume, from mere proof of the undertaking, that the 
 attorney has performed any valuable service under it.** The fore- 
 going rule is frequently applied where cases are taken for a fee 
 contingent on the successful outcome of litigation,** but it is 
 equally applicable in all cases where performance by the attorney 
 is a condition precedent to the right to compensation for his serv- 
 ices. Thus, for instance, an attorney may be obliged to show that 
 a claim was collected,*^ or a judgment obtained,*' or an incum- 
 brance removed,*' if, under the terms of his agreement with his 
 client, it was his duty so to do. It will be recalled, however, that 
 the right to a retaining fee does not necessarily call for the per- 
 formance of services, and, therefore, proof of performance in those 
 cases consists merely of showing a readiness on the part of the at- 
 torney to do that for which he was engaged.*^ 
 
 § 524. Sufficiency of Proof. — Performance on the part of 
 the attorney is sufficiently established by proof showing that he 
 
 Ohio. — Douglass v. Downend, 30 16 See supra, § 423. See also Eng- 
 
 Ohio Cir. Ct. Rep. 649. lish r. McConnel, 23 111. 513; Hargls 
 
 Tennessee. — Moyers v. Graham, 15 v. Louisville Gas Co., 22 S. W. 85, 23 
 
 Lea 57; Vaughn v. Tealey, 63 S. W. S. W. 790, 15 Ky. L. Rep. 369; Allen 
 
 236. V. Gregg, (Pa.) 16 Atl. 46. 
 
 yexos.— Shaw v. Threadgill,' 53 16 Bruce v. Baxter, 7 Lea (Tenn.) 
 
 Tex. Civ. App. 254, 115 S. W. 671. 477. 
 
 Vermont. — Nichols v. Scott, 12 Vt. iTLockwood v. Brush, 6 Dana 
 
 47; Briggs v. Georgia, 15 Vt. 61. (Ky.) 433; Barnard v. Brower, 110 
 
 Washington. — Rosenbaum v. Syver- N. Y. 77, 17 N. E. 376. 
 
 son Lumber & Shingle Co., 65 AVash. Note for Fees in Hands of Inno- 
 
 459, 118 Pac. 625. cent Transferee. — A note given by a 
 
 West Virginia, — Matheny v. Farley, client to an attorney for services to 
 
 66 W. Va. 680, 66 S. B. 1060. be rendered in a suit is void, though 
 
 11 Buchanan v. Tennant, 60 Ore. in the hands of an innocent trans- 
 560, 120 Pac. 404. feree, if the attorney fails to conduct 
 
 12 See supra, §§ 450-460. the suit to judgment. Weed v. Bond, 
 
 13 See supra, §§ 452, 454, 455. 21 Ga. 195. 
 
 14 Stow V. Hamlin, 11 How. Pr. 18 Badger v. Gallaher, 113 111. 662. 
 (N. Y.) 452. See also Pickett v. 19 See supra, § 406. See also Pate 
 Gore, (Tenn.) 58 S. W. 402. v. Maples, (Tenn.) 43 S. W. 740. 
 
912 
 
 ACTIONS TO RECOVER COMPENSATION. 
 
 [§ 524 
 
 accomplislied. the purpose for which he was retained,*" or that 
 he performed all services required of him under his contract.^ It 
 is immaterial that he was called upon to do less work than the par- 
 ties had contemplated when the agreement for compensation was 
 entered into, or that the client's purpose was accomplished in a 
 different way, and with less friction, than had been anticipated.' 
 ISTor is it essential to a recovery by the attorney that he should 
 prove a literal performance; a substantial performance is suffi- 
 cient. What would constitute a substantial performance, however, 
 is a question which must be decided from the facts of each case.' 
 For the purpose of showing performance, the attorney may intro- 
 duce any competent evidence which will have a tendency to estab- 
 lish that fact,* the weight thereof being a question for the jury.' 
 Thus, in some instances performance may be shown by the rec- 
 ord,® or the pleadings,'' or other writings.' So, depositions taken 
 by the attorney during the progress of litigation may be intro- 
 duced for the purpose of showing the performance of services, and 
 also as bearing on the question of the care and skill with which 
 they were performed.® 
 
 20 Indiana. — Pennington v. Nave, 15 
 Ind. 323. 
 
 Kentucky. — Williams v. Thurston, 
 3 B. Mon. 164; Pittsburgh, C. &, St. 
 L. R. Co. V. Woolley, 12 Bush 451; 
 Browder v. Long, 66 S. W. 600, 23 
 Ky. L. Rep. 2068; Hill v. Leland, 10 
 Ky. L. Rep. 280. 
 
 Louisiana. — State v. Barrow, Man. 
 Unrep. Cas. 332. 
 
 Michigan. — Moran v. L'Etourneau, 
 118 Mich. 159, 76 N. W. 370. 
 
 'New YorJc. — Sessions v. Palmeter, 
 75 Hun 268, 26 N. Y. S. 1076. 
 
 South Carolina. — ^Verner v. Sulli- 
 van, 26 S. C. 327, 2 S. E. 391. 
 
 1 Hidalgo County Drainage Dist. 
 No. 1 V. Swearingen, (Tex.) 58 S. 
 W. 211. 
 
 2 Browder v. Long's Ex'r, 66 S. W. 
 600, 23 Ky. L. Rep. 2068. 
 
 8 CraddocI< v. O'Brien, 104 Cal. 217, 
 
 37 Pac. 896; Hargis v. Louisville Gas 
 Co., 22 S. W. 85, 23 S. W. 790, 15 
 Ky. L. Rep. 369; Cole v. Riehn;ond 
 Min. Co., 18 Nev. 120, 1 Pac. 663; 
 Dennison v. Lawrence, 44 App. Div. 
 287, 60 N. Y. S. 748, reversing 27 
 Misc. 99, 29 Civ. Proc. 176, 58 X. Y. 
 S. 142, appeal dismissed, 162 N. Y. 
 649, 57 N. E. 1108; Deering v. Mc- 
 Cahill, 51 Super. Ct. 263, affirmed 
 106 N. Y. 660, 13 N. E. 934. 
 
 4 Stewart v. Robinson, 76 Cal. 164, 
 18 Pac. 157; Wright v. Smith, 13 
 Barb. (N. Y.) 414. 
 
 5 See infra, § 565. 
 «See supra, § 502. 
 
 ' Harper v. Williamson, 1 McCord 
 L. (S. C.) 156. 
 
 8 Stewart v. Robinson, 76 Cal. 164, 
 18 Pac. 157. 
 
 9 Stark v.. Hill, 31 Mo. App. 101. 
 
§ 525] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 913 
 
 § 525. Performance without Ligitation. — In proving per- 
 formance it is not necessary to show that the attorney's services 
 were actually rendered in court, or in the trial of a cause, even 
 though, at the time of his employment, actual litigation and trial 
 were contemplated; a performance may be just as effectively es- 
 tablished by showing the accomplishment of the desired end with- 
 out litigation or trial,'" as, for instance, by a compromise or set- 
 tlement.'* Indeed it would seem, in many instances at least, that 
 the avoidance of litigation might be deemed to be of benefit, rather 
 than detrimental, to the client; nor is it uncommon to find con- 
 tracts for compensation which provide for the possibility of set- 
 tlement.*^ So, the rendition of professional services may be shown 
 in connection with litigation to which the client was not a party.*' 
 Where a firm of attorneys was employed for a stipulated amount 
 payable on the termination of the suit, and such suit was not 
 brought, and no further demand was made on the firm for serv- 
 ices, performance will be deemed to have been waived, and a re- 
 covery may be had on the contract." But where parties covenant 
 
 11 United States.— MeWen v. U. S., 
 13 Ct. CI. 71. 
 
 Arkansas. — Cockrill v. Sanders, 8 
 S, W. 831. 
 
 Connecticut. — Richardson v. Row- 
 land, 40 Conn. 565. 
 
 Indiana. — Cordes v. Bailey, 39 Ind. 
 App. 83, 78 N. E. 678, rehearing de- 
 nied, 39 Ind. App. 84, 78 N. E. 1060. 
 
 Kentucky. — Browder v. Long'a Ex'r, 
 66 S. W. 600, 23 Ky. L. Rep. 2068. 
 
 Maryland. — Wheeler v. Harrison, 94 
 Md. 147, 50 Atl. 523. 
 
 New York. — In re Hynes, 105 N. 
 Y. 560, 12 N. E. 60; Stoutenburgh v. 
 Fleer, 87 N. Y. S. 504. 
 
 Where the complete performance 
 of an attorney's contract has been 
 rendered unnecessary he may, never- 
 theless, recover reasonable compensa- 
 tion for services performed; thus, 
 where it appears that an attorney 
 was employed to procure an injunc- 
 Attys. at L. Vol. II.— 58. 
 
 tion, and his services, though failing 
 in that respect, where of actual bene- 
 fit to his client, it was held that, 
 while he could not recover the sum 
 stipulated in the contract, he should 
 be allowed for the services rendered 
 in behalf of his client and which 
 were beneficial, a sum equivalent to 
 the reasonable value thereof. Hargis 
 V. Louisville Gas Co., (Ky.) 23 S. 
 W. 790. 
 
 11 Stoutenburgh v. Fleer, 87 N. Y. 
 S. 504; McClain v. Wiliams, 8 Yerg. 
 (Tenn.) 230; Tabet v. Powell, (Tex.) 
 78 S. W. 997. 
 
 18 Clifton V. Clark, Hood & Co., 84 
 Miss. 795, 37 So. 746. And see supra, 
 § 459. 
 
 13 Dublin & S. W. R. Co. v. Aker- 
 man, 2 Ga. App. 746, 59 S. E. 10. 
 
 "Carter v. Baldwin, 95 Cal. 475, 
 30 Pac. 595. And see also supra, §§ 
 439-446. 
 
914 ACTIONS TO EECOVEE COMPENSATION. [§§ 526, 527 
 
 to pay the attorney a reasonable fee to defend them in a pending 
 trial, and the case does not come to trial, the attorney can recover 
 only nominal damages, unless special damages are alleged and 
 proved, even though the attorney actually attended court for the 
 purpose of making a defense.** 
 
 § 526. Performance by Associated Attorneys and Part- 
 ners. — Where two or more attorneys are associated in conducting 
 litigation, or in the transaction of other legal business, perform- 
 ance by any one of them vsfill be sufficient,*® unless the contract of 
 employment provides otherwise." Of course, an agreement to the 
 effect that the client is to have the joint services of several counsel 
 retained by him would be binding, and, in that case, performance 
 by all of them, jointly, must be proved, in order that a recovery 
 may be had on the contract ; *' but, even in that case, any one of the 
 attorneys so retained may recover reasonable compensation for 
 his services, in the absence of express contractual provisions to the 
 contrary.*' So, where a law partnership has been retained, a 
 performance by any member of the firm will ordinarily be suffi- 
 cient to justify the recovery of compensation.*" Matters pertain- 
 ing to the compensation of law partnerships generally have been 
 considered heretofore.* 
 
 § 527. Performance by Substitute. — It has been stated 
 heretofore that an attorney who has been engaged to render pro- 
 fessional services cannot, without the consent of his client, dele- 
 gate to another the authority so reposed in himself ; * and, there- 
 fore, performance by a substitute is not sufficient to warrant a 
 
 IB Wilson V. Barnes, 13 B. Mon. 19 PercifuU v. Wilson, 3 Ky. L. Eep. 
 
 (Ky.) 330. And see also siipra, §§ 759; Wrights. Gillespie, 43 Mo. App. 
 
 447-449. 244. 
 
 le Phillips V. Edsall, 127 111. 535, ZO Johnson v. Bright, 15 111. 464; 
 
 20 N. E. 801; Simon v. Brashear, 9 Phillips v. South Park Com'rs, 119 
 
 Rob. (La.) 59, 41 Am. Dec. 321. 111. 626, 10 N. E. 230; 
 
 IT Morgan v. Roberts, 38 111. 65. Boardman, 37 Mich. 14. 
 
 18 Baxter v. Billings, 83 Fed. 790, 1 See supra, §§ 471-474. 
 
 49 U. S. App. 767, 28 C. C. A. 85; 2 See supra, § 210. 
 Morgan v. Roberts, 38 111. 65; Perci- 
 fuU V. Wilson, 3 Ky. L. Rep. 759. 
 
§ 528] ACTIONS TO KECOVEE COMPENSATION. 915 
 
 recovery, even though such substitute's qualifications are equal or 
 superior to those of the counsel originally retained.' In some in- 
 stances, however, it is conceded that this rule must yield to the 
 necessities of the situation, as, for instance, where the original 
 attorney is ill, or has been elevated to the bench.* In such cases, 
 if the client is dissatisfied, it is his duty to tender compensation 
 for the services already rendered, and rescind the contract of em- 
 ployment ; * arid if he fails to do so, and stands by and permits the 
 work to be done by the substituted attorney, it may fairly be as- 
 sumed that he assents thereto.* So, under the retainer of an at- 
 torney, or of a firm of attorneys, much of the business undertaken 
 may be done by them or any one in their employ and under their 
 direction, and it will be found extremely difficult to draw the line 
 and say just what must be performed by the person or firm re- 
 tained, and what may be done under their direction by persons in 
 their employ.' 
 
 § 528. Purpose Accomplished without Attorney's Aid. — 
 
 Where an attorney has been retained to conduct litigation, or to 
 transact any other legal business, he cannot be deprived of the 
 right to compensation for his services merely because his client, 
 without the attorney's direct aid, brought the matter to a satisfac- 
 tory conclusion ; * but such a disposition of the business may affect 
 the amount of the attorney's compensation, especially where no 
 fixed sum has been agreed upon.' The rule is different, however, 
 where the attorney's compensation depends on the successful out- 
 come of the business undertaken. In such cases the attorney, if 
 he fails, will not be entitled to claim compensation merely because 
 the client subsequently succeeded by his own efforts,^" or in any 
 other way.^^ Of course, where the conduct of the client is such as 
 
 'Morgan v. Roberts, 38 111. C5. . TEggleston v. Boardman, 37 Mich. 
 
 *Fenno v. English, 22 Ark. 170; 14. 
 
 Eusi V. Larue, 4 Litt. (Ky.) 411, 14 8 Pierce v. Parker, 121 Mass. 403. 
 
 Am. Dec. 172. And see supra, § 452, 9 See supra, 456-458. 
 
 as to "impossibility of performance" l" Sinirall v. Morton, 6 Ky, L. Rep. 
 
 generally. 735; Hitchings v. Van Brunt, 5 Abb. 
 
 SFenno v. English, 22 Ark. 170. Pr. N. S. (N. Y.) 272. And see also 
 
 ^Eggleston v. Boardman, 37 Mich. supra, §§ 423, 457. 
 
 14; Alleorn v. Butler, 9 Tex. 56; 11 Fague u. Corcoran, 3 Mackey (D. 
 
 Smith V. Lipscomb, 13 Tex. 532. C.) 199. 
 
916 ACTIONS TO EECOVEE COMPENSATION. [§ 529 
 
 to prevent performance, the attorney may, as a general rule, re- 
 cover.^^ So, in some instances, the effect which a settlement hy 
 the client will have on the right of the attorney to be paid for his 
 services, and the amount of such payment, is provided for in the 
 contract for compensation.^' 
 
 Proof of Value of Services. 
 
 § 529. In General. — An attorney who sues for compensation 
 must prove the value of his services.'* A mere ledger entry, ap- 
 pearing under the title pertaining to the client's matter, is not 
 sufficient.*' It is not necessary, however, to prove the value of 
 each step taken in a lawsuit; '* it is enough to prove, in general 
 terms, the proceedings in the cause, the time occupied in the per- 
 formance of the services, and their value as a whole, or in detail, 
 as the plaintiff may elect." Thus where an attorney rendered a 
 bill for legal services in perfecting the title to certain property, 
 and conducting correspondence with reference thereto, he was not 
 obliged to specify the charge for each item of service rendered, but 
 was only required to state the value of each service performed so 
 far as he was able.*' So, in an action by a law iirm to recover 
 for its services, one of the partners will not be obliged, on cross- 
 examination, to state the reasonable value of his individual serv- 
 ices where they are so intermingled with those of his copartners 
 as to be difficult of separation.*^ The plaintiff is not only a compe- 
 tent witness in his own behalf,^" but his evidence may, of itself, 
 be sufficient to establish his cause of action.* As an aid in deter- 
 
 12 See supra, §§ 450, 451, 456-458. "Garfield v. Kirk, 65 Barb. (N. 
 
 13 See supra, § 459. Y.) 464. 
 
 14 Bell V. Welch, 38 Ark. 139 ; Fry 18 Treakle v. Vaughan, 83 Ark. 258, 
 V. Lofton, 45 Ga. 171; Stow v. Ham- 103 S. W. 174. 
 
 lln, 11 How. Pr. (N. Y.) 452; Garr W Thorp v. Ramsey, 51 Wash. 530, 
 
 V. Mairet, 1 Hilt. (N. Y.) 498. 99 Pac. 584. 
 
 As to rules of evidence, see supra, 80 Schlicht v. Stivers, 61 la. 746, 
 
 §§ 501-506. 16 N. W. 74; Chamberlain v. Eodgers, 
 
 15 Davis V. Fischer, 90 N. Y. S. 79 Mich. 219, 44 N. W. 598 ; Foster v. 
 301. See also Hale v. Ard, 48 Pa. St. Newbrough, 66 Barb. {N. Y.) 645. 
 22 ; Briggs v. Georgia, 15 Vt. 61 . 1 Chamberlain v. Eodgers, 79 Mich. 
 
 16 Treakle v. Vaughan, 83 Ark. 258, 219, 44 N. W. 598 ; West v. Eley, 39 
 103 S. W. 174; Garfield v. Kirk, 65 Ore. 461, 65 Pac. 798. 
 
 Barb. (N. Y.) 464. 
 
§§. 530, 531] ACTIONS TO EECOVEK COMPElTSATIOir. 917 
 
 mining what may, or may not, be shown as evidence of the vahie 
 of an attorney's services, it is advisable to consult the discussion, 
 in the preceding chapter, as to the amount of compensation to 
 which an attorney is entitled.* A conflict of evidence as to the 
 value of an attorney's services presents a question of fact.* 
 
 § 530. Value of Retaining Fee. — Where suit is brought for 
 a retaining fee, the value thereof, in the absence of an express 
 agreement in this respect, must be shown.* When the suit is 
 brought for services generally, reasonable compensation therefor, 
 as a rule, includes a retaining fee; where, however, a retaining 
 fee is the only claim sued for, no actual services having been per- 
 formed, its value, in the absence of an express agreement, must 
 be what will compensate the plaintiff for entering into the service 
 of the defendant,* and must, necessarily, depend on the evidence 
 of the plaintiff,* and such other lawyers as may be called by either 
 side as expert witnesses.'' 
 
 § 531. In Actions upon Express Contracts. — An agree- 
 ment fairly entered into between an attorney and his client as to 
 the amount of compensation which the attorney is to receive for 
 his services is binding on both parties,' providing, of course, that 
 it is not tainted with illegality.' The contract must, however, be 
 established ; ^'' but, when established, it is at least prima facie evi- 
 dence of the amount to which the attorney is entitled.'* It may 
 
 a See supra, §§ 439-486. 7 See supra, §§ 445-450. 
 
 3 Blizzard v. Applegate, 77 Ind. 8 See supra, §§ 439-446. 
 
 516; Atkinson v. Dailey, 107 Ind. » See supra, §§ 428-437. And see 
 
 117, 7 N. E. 902; Gedney v. Ayers, 111 the section following. 
 Minn. 66, 126 N. W. 398; Williams lo Dudley v. Sanders Mfg. Co., 114 
 
 r. Philadelphia, 208 Pa. St. 282, 57 Fed. 981; Randolph v. St. Joseph, S. 
 
 Atl. 578. & N. R. Co., 118 Mo. App. 460, 94 
 
 4 Knight V. Euss, 77 Cal. 410, 19 S. W. 309; Dickerson v. Scheuer, 50 
 Pae. 698. See also Carter v. Bald- Super. Gt. 605, 1 N. Y. S. 419; Fulton 
 win, 95 Cal. 475, 30 Pae. 595; Buckles v. Western Stove Mfg. Co., (Tex.) 45 
 r. Northeast Kansas Tel. Co., 79 Kan. S. W. 1035; Boyd v. Boyce, (Tex.) 
 34, 99 Pae. 813. 53 S. W.- 720.. 
 
 B As to the right to retaining fees n Ottofy v. Keyes, 91 Mo. App. 
 
 see supra, § 406. 146; St. John v. Bird, 110 N. Y. S, 
 
 6 See supra, § 529 note. 389. 
 
918 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 532 
 
 be proved by any competent testimony,** or it may be admitted by 
 the adverse party ; ** and, when proven, the contract itself may be 
 offered in evidence.** But the terms of the contract cannot be 
 affected by parol evidence by way of construction or otherwise.*^ 
 In an action brought upon an express contract, evidence of the rea- 
 sonable value of the attorney's services is inadmissible,** excepting, 
 possibly, where the contract is attacked as unfair," because, in 
 the absence of unfairness or fraud, the mere fact that either the 
 client or the attorney made a bad bargain, and that the services 
 performed were reasonably worth more or less than the price 
 agreed upon, cannot relieve either party from his contract.** 
 
 § 532. Burden of Proving Fairness. — In an action for com- 
 pensation based on an express contract, the attorney has the burden 
 of proving that the contract was fairly and honestly entered into 
 with the client, and that no advantage was taken of the client's ig- 
 norance either of the law, or of any facts within the knowledge of 
 the attorney.*' This is especially true as to contracts for compen- 
 
 12 Evidence of an agent, through 
 whom the attorney was employed, is 
 admissible to show the terms of a 
 contract as to the attorney's com- 
 pensation. Britt V. Burghart, 16 Tex. 
 Civ. App. 78, 41 S. W. 389. See also 
 Holmes v. Holland, 11 Ohio Dec. (Re- 
 print) 768, 29 Cine. L. Bui. 115. 
 
 15 Knight V. Whitmore, 125 Cal. 
 198, 57 Pac. 891. 
 
 14 Sohultheis v. Nash, 27 Wash. 250, 
 67 Pac. 707. 
 
 IB See supra, § 419. See also Rus- 
 sell V. Young, 94 Fed. 45, 36 C. C. A. 
 71; Funk v. Mohr, 185 HI. 395, 87 
 N. E. 2, affirming 85 111. App. 07; 
 Gaither v. Dougherty, 38 S. W. 2, 
 18 Ky. L. Rep. 709; Fulton v. West- 
 ern Stove Mfg. Co., (Tex.) 45 S. W. 
 1035; Cain v. Moore, 54 Wash. 627, 
 103 Pac. 1130. 
 
 16 Colorado. — Rockwell Stock & 
 Land Co. v. Castroni, 6 Colo. App. 
 528, 42 Pac. 180. 
 
 District of Columbia. — Gilbert v. 
 Fay, 4 App. Cas. 38; Heiberger v. 
 Worthington, 23 App. Gas. 565. 
 
 Georgia. — Bull v. St. Johns, 39 Ga. 
 78. 
 
 Illinois. — ^People's Casualty Claim 
 Adjustment Co. v. Darrow, 172 111. 
 62, 49 N. E. 1005. 
 
 New York. — Marston v. Baerenklan, 
 11 Misc. 620, 32 N. Y. S. 785, af- 
 firmed 13 Misc. 13, 33 N. Y. S. 994; 
 
 Pennsylvania. — Fitzpatricic v. Lin- 
 coln Savings & Trust Co., 194 Pa. St. 
 544, 45 Atl. 333; Appeal of Wait, 20 
 W. N. C. 19, 9 Atl. 943. 
 
 1' Oaccia v. Isecke, 123 App. Div. 
 779, 108 N. Y. S. 542. See also the 
 section following. 
 
 18 See supra, § 439. See also Reyn- 
 olds V. Sorosis Fruit Co., 133 Cal. 
 625, 68 Pac. 21. 
 
 19 Alabama.— K\dd r. Williams. 132 
 Ala. 140, 31 So. 458, 56 L.R.A. 879. 
 
§ 532] ACTIONS TO EECOVEE COMPENSATIOlir. 919 
 
 pation entered into after the relation of attorney and client has 
 been established; and, in some jurisdictions, the rule is confined 
 to these contracts, those by which the relation is effected being 
 deemed to have been made at arm's length. This subject has been 
 considered heretofore.*" It has been held, however, that an at- 
 torney is not obliged, in proving his case in chief, to assume the 
 burden of proving that he has not induced his client to enter 
 into the agreement, upon which suit is brought, by fraud, or an 
 abuse of confidence,' unless, perhaps, the sum stipulated for in the 
 contract is, of itself, so large as to warrant an inference, in the 
 absence of explanation, that it is exorbitant.* So, where the only 
 issue involved was whether a contract was in fact made, it was 
 held that the court was justified in refusing to charge that the 
 jury must be satisfied that the contract was a fair one, where there 
 was no evidence that the contract was unfair, or that the attor- 
 ney had overreached the client.' On an issue as to whether a con- 
 tract for compensation is fair and conscionable, evidence of the 
 value of the services rendered under it may be introduced.* In 
 a suit to recover an attorney's fee which has been allowed in an- 
 other action, there is a presumption that the fee allowed is fair 
 and reasonable.* So, the introduction in evidence of a trust deed 
 fixing the amount of an attorney's fee, has been held to be prima 
 facie proof of its reasonableness.* Where an attorney testified 
 
 Indiana. — Shirk v. Neible, 156 Ind. and client generally, see supra, 
 
 66, 59 N. E. 281, 83 Am. St. Eep. 150. §§ 152-163. 
 
 Iowa. — Donaldson v. Eaton, 136 la. l Beagles v. Robertson, 135 Mo. 
 
 650, 114 N. W. 19, 125 Am. St. Rep. App. 306, 115 S. W. 1042. 
 
 275, 14 L.E.A.(N.S.) 1168. « Beagles v. Robertson, 135 Mo. 
 
 Maine.— Burnham v. Heselton, 82 App. 306, 115 S. W. 1042; Weeks v. 
 
 Me. 495, 20 Atl. 80, 9 L.R.A. 90. 84 Gattell, 125 App. Div. 402, 109 N. 
 
 Me. 578, 24 Atl. 955. Y. S. 977, affirmed 193 N. Y. 681 
 
 yew Yorfc.— Randall v. Packard, 1 mem., 87 N. E. 1129. 
 
 Misc. 344, 20 N. Y. S. 716, affirmed 3 Werner v. Knowlton, 107 App, 
 
 142 N. Y. 47, 36 N. E. 823 ; Blaikie Div. 158, 94 N. Y. S. 1054. 
 
 V. Post, 137 App. Div. 648, 122 N. * Caccia v. Isecke, 123 App. Div. 
 
 Y. S. 292. 779, 108 N. Y. S. 542. 
 
 Oregon. — Hamilton v. Holmes, 48 6 Ramage v. Littlejohn, 17 Wash. 
 
 Ore. 453, 87 Pac. 154. 386, 49 Pae. 486. 
 
 80 See supra, §§ 428-432. 6 Dorn v. Ross, 177 111. 225, 52 N. 
 
 As to dealings between attorney E. 321, affirming 77 111. App. 223. , 
 
920 ACTIONS TO EECOVEE COMPENSATION. [§ 533 
 
 that after two thirds of the work had been performed he refused 
 to proceed further without a promise of more than the ordinary 
 fee, because of certain compromising complications, cross-examina- 
 tion was allowed, as bearing on his credibility, as to what these 
 complications were.'' A conflict of evidence usually presents a 
 question of fact for the jury.* 
 
 § 533. In Actions on Implied Contracts Generally. — 
 
 Where an attorney at law renders professional services to a client, 
 and there is no agreement as to the amount of his compensation, 
 he is entitled to the reasonable value of his services.' The ques- 
 tion of what is, or is not, reasonable compensation, at best one of 
 considerable difficulty, has been considered heretofore, and should 
 be consulted in this connection.*" Precisely the same difficulty 
 which is encountered in fixing the amount of compensation un- 
 der an implied contract, also presents itself in the effort to intro- 
 duce evidence of the reasonable value of the attorney's services. 
 For certain services of a mechanical or routine character, and for 
 certain formal proceedings or transactions, either the law has laid 
 down, or custom has fixed, certain charges which are deemed a 
 proper and fair compensation.** But for those services which are 
 rendered by the intelligent and educated lawyer in the trial or 
 argument of difficult cases, in the study and investigation of in- 
 tricate and novel questions of law, calling for special intelligence, 
 labor or ability, no regular tariff or measure of value can be fixed, 
 not only because of the natural difference, as between lawyers, in 
 ability and experience, or in aptitude for special branches of law, 
 
 7 Bolton V. Daily, 48 la. 348. dered, even though by a counselor, in 
 
 8 See infra, § 565. the capacity of attorney at law. See 
 
 9 See supra, §§ 404, 437. supra, § 405. 
 
 "The law assumes that the laborer 10 See supra, §§ 447-449. 
 
 is worthy of his hire, even though he 11 People v. Bond Street Sav. Bank, 
 
 be a lawyer." Holmes v. Holland, H 10 Abb. N. Cas. (N. Y.) 15. 
 
 Ohio Dec. (Reprint) 768, 29 Cine. L. A schedule of fees fixed hy a bai 
 
 Bui. 115. association is not admissible in evi. 
 
 In New Jersey fees for advocacy dence on the question of reasonabU 
 
 cannot be recovered in the absence of compensation. Gaither v. Dougherty, 
 
 an express contract therefor. It is 38 S. W. 2, 18 Ky. L. Rep. 709f 
 otherwise, however, as to services ren- 
 
§ 533] ACTIONS TO EECOVEE COMPENSATION. 921 
 
 but also because so much depends upon tbe peculiar cbaracteristics 
 or the relative importance of the special service under consider- 
 ation.^^ Indeed, it is evident that reasonable value depends en- 
 tirely on the facts presented in the individual case. It is compe- 
 tent, therefore, to introduce evidence of every circumstance attend- 
 ing the cause which, according to established usage, will serve to 
 guide to a conclusion as to what is a proper professional charge.*' 
 Thus, as bearing on the value of an attorney's' services, it is com- 
 petent to introduce evidence as to his ability, skill, experience, dili- 
 gence, and his standing in his profession. It is also competent to 
 prove the nature and extent of the services performed ; the diffi- 
 culties encountered; the responsibility assumed; the physical and 
 mental labor involved ; the importance of the litigation ; the 
 amount in controversy ; the result achieved, and its benefits ; and, 
 in some states, the client's wealth may be shown, and, possibly, 
 his lack of wealth; and the usual and customary charges for like 
 services in the same vicinity.'* On the other hand, it should be re- 
 membered that the profession of the law is not one that is pursued 
 for money only. Its professors should, and generally do, remem- 
 ber that they form a class of the community who are in some de- 
 
 12 People r. Bond Street Sav. Bank, Hurley, 109 Minn. 415, 124 N. W. 4. 
 10 Abb. N. Ca8. (N. Y.) 15; Heblich Mississippi. — Holly Springs v. Man- 
 V. Slater, 217 Pa. St. 404, 66 Atl. ning, 55 Miss. 380. 
 
 655. Montana. — McHatton v. Girard, 41 
 
 13 Georgia.— Spicer v. Yopp, 30 Ga. Mont. 387, 109 Pac. 704. 
 
 285; Dublin & S. W. R. Co. v. Aker- New Yorfc.— Smith v. Hayes, 10 
 
 man, 2 Ga. App. 746, 59 S. E. 10; App. Div. 245, 41 N. Y. S. 954, 75 N. 
 
 Coker v. Oliver, 4 Ga. App. 728, 62 Y. St. Rep. 1328. 
 
 S. E. 483. Wo.— Holmes v. Holland, 11 Ohio 
 
 Kentucky. — Bryant v. Maxwell, 12 Dec. (Reprint) 768, 29 Cine. L. Bui. 
 
 S. W. 1134, 11 Ky. L. Rep. 225; 115. 
 
 Whallen v. Hallam, 76 S. W. 860, 25 i'emsj/iwaji.io.— Heblicli v. Slater, 
 
 Ky. L. Rep. 965. 217 Pa. St. 404, 66 Atl. 655. 
 
 Louisiana. — Hunt v. Orleans Cot- Texas. — Aycoek v. Baker, 60 S, W. 
 
 ton Press Co., 2 Rob. 404; Durand 273; Cahill v. Dickson, 77 S. W. 281. 
 
 V. Landry, 120 La. 513, 45 So. 409. Vermont. — Carpenter v. Gibson, 82 
 
 Michigan. — Eggleston v. Boardman, Vt. 336, 73 Atl. 1030. 
 37 Mich. 14; Myers v. Radford, 167 Washington. — Ramage v. Little- 
 Mich. 135, 132 N. W. 550. John, 17 Wash. 386, 49 Pae. 486. 
 
 Minnesota. — Lind v. Jones, 104 1* See the sections following in this 
 
 Minn. 302, 116 N. W. 579; Dwyer v. subdivision. 
 
922 ACTIONS TO BECOVEE COMPENSATION. ;[§ 534 
 
 gree compensated for their labor, and the time spent ,in anxious 
 search after knowledge, by the respect and regard entertained for 
 them generally, and by the opportunities, so often afforded, of im- 
 pressing on the age in which they live the spirit and genius which 
 animate them.^® The general rule, that the measure of damages 
 in case of an employer's breach of a contract for personal employ- 
 ment is the difference between what the employee received or 
 might have received from others and the price agreed on, does not 
 generally apply to breach of a contract for attorney's services, but 
 may apply under peculiar circumstances.*® 
 
 § 534. Attorney's Ability, Experience and Standing. — 
 
 While it is true that in the rendition of legal services any compe- 
 tent lawyer may, in many instances, serve as well as another," it 
 is equally true that lawyers are often called upon, in the conduct 
 of litigation and otherwise, to perform professional services which 
 require the exercise of keen judgment and delicate perception, as 
 well as a sound and extensive knowledge of the law, and that, in 
 so doing, there may be no comparison between the relative abili- 
 ties of two men.** Therefore, it is competent, in actions for com- 
 pensation, to show the ability, skill, experience, and standing of 
 the plaintiff as a lawyer." So, where the possession of particu- 
 lar qualifications constitute an important element in the value of 
 the services rendered, evidence thereof may be admitted, and is en- 
 
 15 Hunt V. Orleans Cotton Press Illinois. — ^Levinson v. Sands, 74 IlL 
 Co., 2 Rob. (La.) 404. App. 273. 
 
 16 Kikuchi v. Ritchie, 202 Fed. 857, Iowa. — Clark v. Ellsworth, 104 la. 
 121 C. C. A. 215. 442, 73 N. W. 1023. 
 
 iTPlayford v. Hutchinson, 135 Pa. Michigan. — Eggleston v. Boardman, 
 
 St. 426, 19 Atl. 1019; Heblich v. 37 Mich. 14; Lungerhaiisen i;. Crit- 
 
 Slater, 217 Pa. St. 404, 66 Atl. 555. tenden, 103 Mich. 173, 61 N. W. 270. 
 
 18 Heblich v. Slater, 217 Pa. St. 404, GMo. — Kittredge v. Armstrong, 11 
 66 Atl. 655. See also Phelps v. Hunt, Ohio Dec. (Reprint) 661, 28 Cine. 
 40 Conn. 97; People v. Bond Street L. Bui. 249; Holmes v. Holland, 11 
 Sav. Bank, 10 Abb. N. Cas. (N. Y.) Ohio Dec. (Reprint) .768, 29 Cine. 
 15. L. Bui. 115. 
 
 19 Colorado. — Willard v. Williams, Tennessee. — Bowling v. Scales, 1 
 10 Colo. App, 140, 50 Pac. 207. Tenn. Ch. 618. 
 
 Connecticut. — Phelps r. Hunt, 40 Vermont. — Vilas v. Downer, 21 Vt. 
 
 Conn. 97. 419. 
 
§ 535] ACTIONS TO EEOOVEE COMPENSATION. 923 
 
 titled to mucli consideration.*" The services of a lawyer who, in 
 order to excel in his profession, has devoted years to preliminary 
 studies, and has spent much labor and money thoroughly to fit him 
 for his calling, so that he might be able to act as an advocate in 
 court, or as a counselor to guide and direct, others, to furnish 
 them from his vast storehouse of knowledge, ripened and perfect- 
 ed from long experience, with ideas and suggestions which, when 
 carried out, would lead to success, is not, of course, to be compared 
 with ordinary labor. ^ Thus, the artist who transfers to the can- 
 vas the living likeness, destined perhaps to become immortal as a 
 work of art, is entitled to a vastly higher compensation than he 
 would be for spending the same time in painting buildings. So 
 the recompense to be paid the sculptor who conceives, moulds, and 
 produces his masterpieces of form, cannot be measured and fixed 
 by a standard based alone upon the time he spent in their produc- 
 tion ; nor in cases where they were merely executed under his di- 
 rection, could his reward be fixed upon the same standard as of 
 those who performed the manual labor under his personal super- 
 vision. The productions of the composer, the poet, and the au- 
 thor, cannot be valued by the time apparently spent in their prep- 
 aration, because they are formed of a combination of ideas which 
 may have cost their authors years of application to complete.^ In 
 order, however, that an attorney's ability and professional stand- 
 ing may be taken into consideration by the jury, there must be 
 some evidence thereof on the record.' Facts of this character are 
 usually established by the testimony of members of the bar.* It 
 has been held, however, that the amount of business which an at- 
 torney transacts may also be shown as evidence of his professional 
 standing.* 
 
 § 535. Nature and Extent of Services. — It is customary 
 and permissible, in actions for compensation, to introduce evi- 
 
 20 Phelps V. Hunt, 40 Conn. 97. 4 See infra, § 546. 
 
 1 Eggleaton v. Boardman, 37 Mich. B Phelps v. Hunt, 40 Ccoin. 97. See 
 
 14. also Robbins v. Harvey, 5 Conn. 335. 
 
 SEggleston v. Boardman, 37 Mich. Compare Gaither v. Dougherty, 38 S. 
 
 14. W. 2, 18 Ky. L. Rep. 709. 
 
 3 Smith V. Couch, 117 Mo. App. 267, 
 92 S. W. 1143. 
 
924 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 53[ 
 
 dence as to the nature * and extent " of the services rendered, for 
 the purpose of showing their value. Thus, the questions of law 
 involved — their intricacy, difficulty, or novelty — may be shown.' It 
 is also competent to prove the physical and mental labor involved,' 
 
 6 Alabama. — Davis v. Walker, 131 
 Ala. 204, 31 So. 554. 
 
 Indiana. — ^MoFadden v. Ferris, 6 
 Ind. App. 454, 32 N. E. 107. 
 
 loica. — Stevens v. Ellsworth, 95 la. 
 231, 63 N. W. 683; Graham v. Dillon, 
 144 la. 82, 121 N. W. 47. 
 
 Kentucky. — Stucky v. Smith, 148 
 Ky. 401, 146 S. W. 1128; Trimble v. 
 Acme Mills & Elevator Co., 151 Ky. 
 570, 152 S. W. 561. 
 
 Louisiana. — Hunt v, Orleans Cotton 
 Press Co., 2 Rob. 404; Brewer v. 
 Cook, 11 La. Ann. 637; Breaiix v. 
 Francke, 30 La. Ann. 336. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14; Babbitt V. Bumpus, 73 
 Mich. 331, 41 N. W. 417, 16 Am. St. 
 Rep. 586. 
 
 New York. — Harland v. Lilienthal, 
 53 N. Y. 438; People v. Bond Street 
 Sav. Bank, 10 Abb. N. Cas. 15. 
 
 Ohio. — Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249; Holmes v. Holland, 11 
 Ohio Dec. (Reprint) 768, 29 Cine. L. 
 Bui. 115. 
 
 Pennsylvania. — Heblich v. Slater, 
 217 Pa. St. 404, 66 Atl. 655. 
 
 Vermont. — ^Vilas v. Downer, 21 Vt. 
 419. 
 
 1 1owa. — Graham v. Dillon, 144 la. 
 82, 121 N. W. 47. 
 
 Kentucky. — Stucky v. Smith, 148 
 Ky. 401, 146 S. W. 1128. 
 
 Louisiana. — Brewer v. Cook, 11 La. 
 Ann. 637. 
 
 Maine. — Snow v. Gould, 74 Me. 540, 
 43 Am. Rep. 604. 
 
 Michigan. — Eggleston v. Boardman, 
 37 Mich. 14. 
 
 'New York. — Shiel v. Muir, 51 Hun 
 644 mem., 4 N. Y. S. 272. 
 
 Ohio. — Holmes v. Holland, 11 Ohio 
 Dee. (Reprint) 768, 29 Cine. L. Bui. 
 115. 
 
 Wisconsin. — Yates v. Shepardson, 
 27 Wis. 238. 
 
 The fact that an attorney was 
 obliged to make a special adjustment, 
 not merely of his time and business, 
 but of his oifiee, to meet the demands 
 made upon him by his client, has a 
 legitimate bearing upon the amount 
 of his compensation. Cooper v. Har- 
 vey, 77 Kan. 854, 94 Pac. 213. 
 
 8 Iowa. — Stevens v. Ellsworth, 95 
 la. 231, 63 N. W. 683. 
 
 Louisiana. — Hunt v. Orleans Cot- 
 ton Press Co., 2 Rob. 404; Breaux v. 
 Francke, 30 La. Ann. 336. 
 
 New York. — People v. Bond Street 
 Sav. Bank, 10 Abb. N. Cas. 15. 
 
 Ohio. — Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249. 
 
 9 Kentucky. — Nesbitt v. Whaley's 
 Adm'r, 10 Ky. L. Rep. 400 (abstract). 
 
 Louisiana. — Hunt v. Orleans Cot- 
 ton Press Co., 2 Rob. 404; Dorscy v. 
 His Creditors, 5 Mart. N. S. 399; 
 Succession of Macarty, 3 La. Ann. 
 517; Breaux v. Francke, 30 La. Ann. 
 336. 
 
 Mississippi. — Holly Springs v. Man- 
 ning, 55 Miss. 380. 
 
 New York. — People v. Bond Street 
 Sav. Bank, 10 Abb. N. Cas. 15. 
 
 Ohio. — Holmes v. Holland, 11 Ohio 
 Dec. (Reprint) 768, 29 Cine. L. Bui. 
 115. 
 
§' 536] ACTIONS TO EECOVEE COMPENSATION. 926 
 
 and the responsibilities assumed.'" T^e fact that litigation con- 
 tinued through four years does not entitle the attorney to four 
 years' compensation, if the services could have been performed in 
 a less time had the condition of the dockets permitted the pro- 
 ceedings to be pressed as they otherwise would have been.** 
 
 § 536. Importance of Litigation. — The importance of a 
 cause to the client is worthy of consideration in determining the 
 value of the attorney's services/^ and evidence thereof may be in- 
 troduced for that purpose.*' It is on this principle that evidence 
 of the amount in controversy is admissible.** So, where several 
 suits are pending in the same court, and involve the same ques- 
 tions, and one attorney is employed to conduct all of them, and 
 he succeeds in obtaining a stipulation that one of the cases shall 
 be tried as a test case, and that the others shall abide by the re- 
 sult thereof, it is proper, in determining the compensation to 
 which the attorney is entitled, to take into consideration the serv- 
 ices rendered by him in the test case as bearing on the value of his 
 services in each of the other cases.*' An attorney may also show 
 the nature and importance of criminal cases, wherein he has been 
 
 m Louisiana. — Hunt v. Orleans Cot- Louisiana. — Breaux v. Francke, 30 
 
 ton Press Co., 2 Rob. 404; Dorsey v. La. Ann. 336. 
 
 His Creditors, 5 Mart. N. S. 399; Mississippi. — Holly Springs v. Man- 
 Succession of Macarty, 3 La. Ann. ning, 55 Miss. 380. 
 517. New York. — Harland v. Lilienthal, 
 
 Mississippi. — Holly Springs v. Man- 53 N. Y. 438. 
 
 ning, 55 Miss. 380. Ohio. — Kittredge v. Armstrong, 11 
 
 New York. — People v. Bond Street Ohio. Dec. (Reprint) 661, 28 Cine. 
 
 Sav. Bank, 10 Abb. N. Cas. 15. L. Bui. 249; Holmes v. Holland, 11 
 
 Pennsylvania. — Heblich v. Slater, Ohio Dec. (Reprint) 768, 29 Cine. L. 
 
 217 Pa. St. 404, 66 Atl. 655. Bui. 115. 
 
 11 Stueky v. Smith, 148 Ky. 401, Pennsylvania. — ^Heblich v. Slater, 
 146 S. W. 1128. 217 Pa. St. 404, 66 Atl. 655. 
 
 12 Selover v. Bryant, 54 Minn. 434, Texas. — International & G. N. R. 
 56 N. W. 58, 40 Am. St. Rep. 349, 21 Co. v. Clark, 81 Tex. 48, 16 S. W. 
 L.R.A. 418. 631. 
 
 IS Iowa. — Clark v. Ellsworth, 104 l* See the section following, 
 
 la. 442, 73 N. W. 1023. 16 Bruce v. Dickey, 116 111. 527, 6 
 
 Kentucky. — Stueky v. Smith, 148 N. E. 435. See also Harland v. Lili- 
 Ky. 401, 146 S. W. 1128. enthal, 53 N. Y. 438. 
 
926 ACTIONS TO EEOOVEK COMPENSATION. [§ 537 
 
 retained, as bearing on the, value of his services.^' As opposed to 
 this view, it was contended in one case that "one day's work in an 
 important cause is worth no more than the same services in a suit 
 of less magnitude; that as well might any laborer or mechanic 
 charge extra wages per day when fortunate enough to secure a 
 large job ; that where work requires a diilerent kind of skill or 
 workmanship, then, of course, such charge should be made as the 
 skill required would command, but the same skill and workman- 
 ship upon an important piece of work would bring no more per 
 day than when it was applied to a lesser job; and that the same 
 knowledge of practice and rules of law are required of the attor- 
 ney or solicitor in one case as the other." The contention, how- 
 ever, was disapproved." 
 
 § 537. Amount in Controversy. — Tt is well settled that the 
 amount in controversy, and the value of property involved in liti- 
 gation, are legitimate subjects of proof in an action by an attor- 
 ney against his client for compensation for his services.'' Thus, 
 in an action for legal services in preparing abstracts of title to 
 land, on the faith of which a purchase of the land was made, the 
 
 16 Daly V. Hines, 55 Ga. 470. Acme Mills & Elevator Co., 151 Ky. 
 
 "Eggleston v. Boardman, 37 Mich. 570, 152 S. W. 561. 
 
 14. Louisiana. — Hunt v. Orleans Cotton 
 
 18 United States. — Lombard v. Bay- Press Co., 2 Rob. 404. 
 
 ard, 1 Wall. Jr. 196, 15 Fed. Cas. No. Missouri. — Smith v. Couch, 117 Mo. 
 
 8,469; Graves v. Sanders, 125 Fed. App. 267, 92 S. W. 1143; Clay v. 
 
 690, 60 C. C. A. 422; Gilmore v. Mc- Brown, 148 Mo. App. 541, 128 S. W. 
 
 Bride, 156 Fed. 464, 84 C. C. A. 274. 803. 
 
 California. — Cusick v. Boyne, 1 Cal. New York. — ^People v. Bond Street 
 
 App. 643, 82 Pac. 985. Sav. Bank, 10 Abb. N. Cas. 15; Gar- 
 
 lUinois. — Haish v. Payson, 107 111. field v. Kirk, 65 Barb. 464. 
 
 365; Campbell v. Goddard, 17 111. Ohio. — Kittredge v. Armstrong, 11 
 
 App. 385. Ohio Dec. (Reprint) 661, 28 Cine. L. 
 
 Indiana. — ^McFadden v. Ferris, 6 Bui. 249. 
 
 Ind. App. 454, 32 N. E. 107. Tennessee. — Taylor v. Badoux, 58 
 
 Iowa. — Berry v. Davis, 34 la. 594; S. W. 919. 
 
 Smith V. Chicago & N. W. R. Co., 60 TeaJos.— International & G. N. R. 
 
 la. 515, 15 N. W. 291 ; Clark v. Ells- Co. v. Clark, 81 Tex. 48, 16 S. W. 631. 
 
 worth, 104 la. 442, 73 N. W. 1023. Washington.— Se% Cain v. Moore, 
 
 KentucTcy.—Stncky v. Smith, 148 54 Wash. 627, 103 Pac. 1130. 
 Ky. 401, 146 S. W. 1128; Trimble v. 
 
§ 537] ACTIONS TO EECOVEB COMPENSATIOIT. 927 
 
 price received may be considered as a circumstance tending to 
 show what would be a reasonable fee for the services rendered.^' 
 So, in estimating the value of an attorney's services in soliciting 
 the pardon of a fugitive from justice in order to obtain him as a 
 witness, the amount of the claim in the case in which he was to 
 testify is proper for the consideration of the jury.^" The amount 
 involved in several suits, conducted by the same attorney for the 
 same client, may also be considered.^ Thus, in estimating the 
 proper compensation of an attorney for services in a suit arising 
 Upon one of many claims affecting the same client in the same way, 
 which are treated by the attorney and client as a unit, and the 
 merits of which are settled by one suit, it is proper to consider the 
 entire amount involved, rather than the amount involved in the 
 suit which was tried.^ But where the attorney does not represent 
 all of the interests involved, the whole amount should not be con- 
 sidered; thus the fees of an attorney representing only some of 
 those who have filed a creditors' bill should be fixed with reference 
 to the interests represented by him, and not solely with reference 
 to the amount of the whole fund brought into court for distribu- 
 tion.' Where the suit, or other legal business, has been settled 
 or otherwise adjusted by the client, the attorney is usually con- 
 fined to the reasonable value of the services rendered by him,* and, 
 as bearing on this question, it has been held that the amount which 
 would probably be recovered,, had there been no settlement, may be 
 taken into consideration.* It is evident that the responsibility, 
 the care, anxiety, and mental labor, is much greater in a case 
 where the amount in controversy is large than where it is insignifi- 
 cant, although, perhaps, the same questions might be raised in each 
 case, or the more difficult questions arise in the case wherein the 
 amount was of but slight consequence. ITor is this responsibility, 
 care and mental labor dependent alone upon the number of hours 
 or days which may be given to the preparation and trial or argu- 
 
 19 Morehead's Trustee v. Anderson, 2 Bruce v. Dickey, 116 111. 527, 6 N. 
 100 S. W. 340, 30 Ky. L. Eep. 1137. E. 435. 
 
 20 Kentucky Bank v. Combs, 7 Pa. 3 Hines v. Brunswick & A. R. Co., 
 St. 543. 50 Ga. 563. 
 
 1 Babbitt v. Bumpus, 73 Mich. 331, « See supra, §§ 456-460. 
 
 41 N. W. 417, 16 Am. St. Rep. 585. 6 Berry v. Davis, 34 la. 594. 
 
928 ACTIONS TO EECOVEK COMPENSATION. [§§ 538, 539 
 
 ment of the ease; or so imaginative and shadowy that it should 
 not be considered in arriving at the amount of compensation which 
 should be allowed in fixing the value of the attorney's services.* 
 While the labor of drawing a pleading may be no more when the 
 amount involved is large than when it is small, yet the labor in 
 the examination of authorities and documents preliminary to 
 drawing it, and the care bestowed upon the pleading itself, would 
 be much greater in one case than in the other. 
 
 § 538. Result. — In actions for compensation it is competent, 
 as a general rule, to show the result of the litigation in which the 
 services were rendered.'' In law, as in war, success is one test of 
 ability. The military man who wins many victories will be called 
 an able general, and a lawyer who is pressed with professional en- 
 gagements shows one of the incidents of legal eminence.* 
 
 § 539. Benefit to Client. — So, in some jurisdictions, it has 
 been held to be competent to show the direct benefits derived 
 by the client from the litigation,^ or a favorable settlement 
 
 6Eggleston v. Boardman, 37 Mich. Pennsylvania. — Heblich v. Slater, 
 
 14. 217 Pa. St. 404, 66 Atl. 655. 
 
 7 United States. — Lombard v. Bay- 8 Phelps v. Hunt, 40 Conn. 97. 
 
 ard, 1 Wall. Jr. 196, 15 Fed. Cas. No. 8 Cusick v. Boyne, 1 Cal. App. 643, 
 
 8,469. 82 Pac. 985; Clark v. Ellsworth, 104 
 
 Florida.— Young v. Whitney, 18 ta. 442, 73 N. W. 1023; Trimble v. 
 
 Fla. 54. Acme Mills & Elevator Co., 151 Ky. 
 
 Indiana. — McFadden v. Ferris, 6 570, 152 S. W. 561; Breaux v. 
 
 Ind. App. 454, 32 N. E. 107. Francke, 30 La. Ann. 336; Rutland v. 
 
 Iowa.— Stevens v. Ellsworth, 95 la. Cobb, 32 La. Ann. 857; International 
 
 231, 63 N. W. 683; Clark v. Ella- & G. N. R. Co. v. Clark, 81 Tex. 48, 
 
 worth, 104 la. 442, 73 N. W. 1023. 16 S. W. 631. 
 
 Kentucky. — Stucky v. Smith, 148 Compare Robbins v. Harvey, 5 
 
 Ky. 401, 146 S. W. 1128. Conn. 335, wherein it was said that 
 
 Michigan. — Eggleston v. Boardman, "the value of services is entirely de- 
 
 37 Mich. 14. tached from the consideration of their 
 
 New York. — People v. Bond Street ultimate benefit to the person render- 
 
 Sav. Bank, 10 Abb. N. Cas. 15. ing them. . . . The inquiry un- 
 
 Ohio. — Holmes v. Holland, 11 Ohio der a quantum meruit is not what 
 
 Dec. (Reprint) 768, 29 Cine. L. Bui. benefits, immediate and remote, have 
 
 115. been derived from the services. If it 
 
§ 540] ACTIONS TO EECOVEE COMPENSATIOIT. 929 
 
 thereof.*" But it is not competent to give evidence of prospective 
 or remote benefits.** Nor can the attorney show that a settlement, 
 which he obtained for his client, was much more favorable than 
 that secured by other litigants who were placed in the same situ- 
 ation.** And where the action is brought on an express contract, 
 evidence of the benefits derived by the client is inadmissible.*' 
 
 § 540. Client's Wealth or Poverty. — So, also, it has been 
 held that where the subject-matter of the litigation is of great im- 
 portance to the litigants, and of a character to lead them to use 
 every legitimate effort to succeed, the wealth of a party, and his 
 consequent ability to make a severe contest, may be considered in 
 connection with his disposition to do so, not only because it tends 
 to show the importance and value of the services which the attor- 
 ney was required to render,** but also as an aid in ascertaining the 
 importance and gravity of the interests involved, *° and in deter- 
 mining whether or not the client is able to pay a fair and just 
 compensation for the services rendered. *° If the plaintiff, in con- 
 sideration of the poverty of some of several joint litigants, settles 
 with them for a lesser sum than his services were really worth, or 
 if the services rendered for any one of them were greater or more 
 valuable than those rendered for the others, these matters shou'/d 
 be brought to the attention of the jury by a request for special in- 
 structions.*'' It is true, of course, that the hvimble and the poor, 
 whose life, liberty, reputation or property is imperilled, attach 
 
 were, the preserving a man's life by 13 Robbins v. Harvey, 5 Conn. 335; 
 
 stopping a horse in full career, on re- Darrin v. Clay, 143 App. Div. 937, 
 
 quest, might require as a compensa- 128 jST. Y. S. 346. And see also 
 
 tion, a splendid fortune. But the supra, § 531. 
 
 question is what is the general worth l* Lombard v. Bayard, 1 Wall. Jr. 
 
 of certain services rendered, or goods 196, 15 Fed. Cas. No. 8,469; Clark v. 
 
 sold." Ellsworth, 104 la. 442, 73 X. W. 
 
 lOHaish V. Payson, 107 111. 365; 1023; Breaux i;. Francke, 30 La. Ann. 
 
 Berry v. Davis, 34 la. 594. 336. 
 
 " Bobbins v. Harvey, 5 Conn. 335 ; 15 Clark v. Ellsworth, 104 la. 442, 
 
 Phelps V. Hunt, 43 Conn. 194; Haish 73 N. W. 1023. And see supra, § 536. 
 
 V. Payson, 107 111. 365, 5 Ky. L. Rep. 18 Ward v. Kohn, 58 Fed. 462, 19 
 
 1, 15 Chicago Leg. N. 307. U. S. App. 280, 7 C. C. A. 314. 
 
 12 Haish V. Payson, 107 111. 365, 5 17 Cunning v. Kemp, 22 Wis. 509. 
 Ky. L. Rep. 1, 15 Cliicago Leg. N. 307. 
 Attys. at L. VoL II.— 59. 
 
930 ACTIONS TO EECOTEE COMPENSATION. [§ 541 
 
 as much importance to their protection as the proud or the wealtliy, 
 and that the sum of material and intellectual labor required to de- 
 fend the first is never less, and often more, than that required to 
 defend the latter ; but when the service has been rendered, its value, 
 to be commensurate therevyith, should be measured by the client's 
 ability to pay." There is no analogy betv^een professional serv- 
 ices and those performed by the ordinary laborer; nor can the 
 creditable fact that where the amount is small, or the client poor, 
 attorneys charge and receive much less than their services may, in 
 fact, have been worth, prevent their recovering reasonable compen- 
 sation in proportion to the magnitude of the interests committed to 
 their care.'* But proof of this character must be confined to the 
 time at which the litigation took plaee,^' and must also be war- 
 ranted by the evidence in the case.' The value of professional 
 services cannot be enhanced, however, by showing that the client 
 was poor, and that, because thereof, the attorney's chances of be- 
 ing paid depended on his success.^ On the other hand, it has 
 been held that where the facts are. the same, professional services 
 rendered for a poor man are worth no less than the same services 
 performed for a rich man. Certainly, less is often taken from the 
 poor than from the rich, but the reason is not because of a differ- 
 ence in what the service is reasonably worth, but because of a dis- 
 position on the part of lawyers to charge less in such cases, even 
 to the extent of making the charge a mere trifle, or a gratuity; 
 and such a practice is to be commended.* 
 
 § 541. Usual and Customary Compensation. — It is com- 
 petent, in actions for compensation, to prove the usual and cus- 
 tomary fees charged,* for services similar to those for which the 
 
 18 Breaux v. Franeke, 30 La. Ann. 2 Robbins v. Harvey, 5 Conn. 335 ; 
 
 336. Smith v. Couch, 117 Mo. App. 267, 92 
 
 WEggleston v. Boardman, 37 Mich. S. W. 1143. 
 
 14. See also supra, § 536. And see 3 Stevens v. EUsviforth, 95 la. 231, 
 
 note 15 in this section. 63 N. W. 683. And see supra, this 
 
 20 Daly V. Hines, 55 Ga. 470. section, note 19. 
 
 iHamman v. Willis, 62 Tex. 507; * United States. — Stanton v. Em- 
 International & G. N. R. Co. V. Clark, brey, 93 U. S. 548, 23 U. S. (L. ed.) 
 81 Tex. 48, 16 S. W. 631. 983. 
 
§ 541] 
 
 ACTIONS TO BECOVEE COMPENSATIOIT. 
 
 931 
 
 compensation is souglit,* in the vicinity wherein they were ren- 
 dered;* providing, of course, that such charges do not appear to 
 be exorbitant.'' Where an attorney was employed by a county 
 board for a certain year at a stipulated salary, and was again des- 
 ignated by the same board as its attorney for the year following, 
 without either a resolution or an agreement as to the amount of 
 his compensation, it was held that the action of the board for the 
 second year amounted to a proposition to continue the employ- 
 ment at the salary received during the former employment, and 
 that, having acted as attorney for such year, he thereby accepted 
 such proposition, although, at the time of the second appointment. 
 
 Alabama. — Fuller v. Stevens, 39 So. 
 623. 
 
 California. — Knight v. Euss, 77 
 Cal. 410, 19 Pac. 698. 
 
 Illinois. — Reynolds v. McMillan, 63 
 111. 46; Nathan v. Brand, 167 111. 607, 
 47 N. E. 771, affirming 67 111. App. 
 540; National Home Bldg. & Loan 
 Assoc. V. Fifer, 71 111. App. 295; Lev- 
 inson v. Sands, 74 111. App. 273; 
 Koedt V. Josephsen, 158 111. App. 388. 
 
 Louisiana. — Cullom v. Mock, 21 
 La. Ann. 687; Jackson's Succession, 
 30 La. Ann. 463. 
 
 Maine.— Bodfish v. Fox, 23 Me. 90, 
 39 Am. Dec. 611. 
 
 Maryland. — Calvert v. Coxe, 1 Gill 
 95. See also Compton v. Barnes, 4 
 Gill 55, 45 Am. Dec. 115. 
 
 Massachusetts. — Frost v. Belmont, 
 6 Allen 152. 
 
 New yorfc.— Allison v. Scheeper, 9 
 Daly 365. 
 
 Pennsylvania. — Thompson v. Boyle, 
 85 Pa. St. 477; Playford v. Hutchin- 
 son, 135 Pa. St. 426, 19 Atl. 1019; 
 Heblich v. Slater, 217 Pa. St. 404, 66 
 Atl. 655. 
 
 Vermont. — Vilas v. Downer, 21 Vt. 
 419. 
 
 5 United States. — Stanton v. Em- 
 
 brey, 93 U. S. 548, 23 U. S. (L. ed.) 
 983. 
 
 Alabama. — Fuller v. Stevens, 39 So. 
 623. 
 
 California. — Knight v. Kuss, 77 
 Cal. 410, 19 Pac. 698. 
 
 Connecticut. — Robbins v. Harvey, 
 
 5 Conn. 335. 
 
 Kentucky. — See also Morehead v. 
 Anderson, 125 Ky. 77, 100 S. W. 340. 
 
 Illinois. — Hughes v. Ferriman, 119 
 111. App. 169. 
 
 Missouri. — Southgate v. Atlantic & 
 
 6 P. E. Co., 61 Mo. 89 ; Goldsmith v. 
 St. Louis Candy Co., 85 Mo. App. 595. 
 
 Pennsylvania. — Thompson v. Boyle, 
 85 Pa. St. 477. 
 
 Vermont. — Vilas v. Downer, 21 Vt. 
 419. 
 
 6 California. — Knight v. Russ, 77 
 Cal. 410, 19 Pac. 698. 
 
 Illinois.— Wilson v. Hart, 129 111. 
 App. 329; Crane v. Eoselle, 157 111. 
 App. 595. 
 
 louM. — Stanberry v. Dickerson, 35 
 la. 493; Clark v. Ellsworth, 104 la. 
 442, 73 N. W. 1023. 
 
 Vermont. — Vilas v. Downer, 21 Vt. 
 419. 
 
 1 Nathan v. Brand, 167 111. 607, 47 
 N. E. 771, affirming 67 111. App. 540. 
 
y32 ACTIONS TO EECOVEE COMPENSATION. [§ 541 
 
 he stated in the presence of the members of the board that he would 
 not perform the services required of him for the salary which he 
 formerly received.' But evidence of this character cannot be 
 carried to the extent of raising collateral issues.' Thus, it is not 
 allowable to show the amount of the fees charged by another law- 
 yer in any given case ; ^'' nor may the plaintiff introduce evidence 
 as to the fees charged by opposing counsel, ^^ or by associate coun- 
 sel,'* especially in the absence of any showing to the effect that 
 their services were similar, their skill equal, and the time spent 
 the same.** Nor is it competent to prove the value of the plain- 
 tiff's services in another suit,** or in a former argument of the 
 same suit,*' because there may be peculiar circumstances which 
 assisted in fixing the amount paid in one case, which would not 
 exist in another, or even between counsel of equal standing in the 
 same case, both in the character of the work, and in the amount 
 and kind of preparation required.*^ But the amount which the 
 plaintiff charged to others who were joint litigants with the de- 
 fendant, and for whom he rendered like services, may be shown." 
 The schedule of fees adopted by a county bar association for pro- 
 fessional services is also inadmissible.*' 
 
 8 Capps V. Adams County, 27 Neb. H Babbitt v. Bumpus, 73 Mich. 331, 
 360, 43 N. W. 114. 41 N. W. 417, 16 Am. St. Rep. 585. 
 
 9 Heblich v. Slater, 217 Pa. St. 404, 12 Wells v. Adams, 7 Colo. 26, 1 Pac. 
 66 Atl. 655. 698; Ottawa University v. Parkinson, 
 
 10 Illinois. — Bruce v. Dickey, 116 14 Kan. 159 ; Playford v. Hutchinson, 
 111. 527, 6 N. E. 4o5. 135 Pa. St. 426, 19 Atl. 1019; Heblich 
 
 ffflMSOS.— Ottawa University v. v. Slater, 217 Pa. St. 404, 66 Atl. 655. 
 
 Parkinson, 14 Kan. 159; Ottawa Uni- IS Ottawa University v. Parkinson, 
 
 veraity v. Welsh, 14 Kan. 164. 14 Kan. 159. And see also supra, 
 
 Maryland. — Calvert v. Coxe, 1 Gill § 534. 
 
 95. l*Hart v. Vidal, 6 Cal. 56; Eggles- 
 
 Michigan. — Eggleston v. Boardman, ton v. Boardman, 37 Mich. 14. 
 
 37 Mich. 14; Babbitt v. Bumpus, 73 16 Strong v. McConnel, 5 Vt. 338. 
 
 Mich. 331, 41 N. W. 417, 16 Am. St. « Eggleston v. Boardman, 37 Mich. 
 
 Rep. 585. 14. See also Cunning v. Kemp, 22 
 
 Nev) York. — Allison v. Scheeper, 9 Wis. 509. 
 
 Daly 365. 17 Cunning v. Kemp, 22 Wis. 509. 
 
 Pennsylvania. — Playford v. Hutch- 1* Gaither v. Dougherty, 38 S. W. 2, 
 
 inson, 135 Pa. St. 426, 19 Atl. 1019; 18 Ky. L. Rep. 709. 
 Heblich v. Slater, 217 Pa. St. 404, 66 
 Atl. 655. 
 
§§ 542, 544] ACTIONS to eecovee compensatioit. 933 
 
 § 542. Offer from Adverse Party. — The value of an attor- 
 ney's services cannot be increased, on the one hand, by the fact 
 that he could have been retained on the other side of the litiga- 
 tion, or decreased, on the other hand, by the fact that his clients' 
 adversary made no effort to employ him ; nor can it be measured 
 by any estimate as to what would have been a reasonable fee had 
 he been so employed.'* 
 
 § 543. Where Services are Rendered in Foreign State. — 
 
 Where attorneys are employed to leave the state in which they 
 reside for the purpose of rendering professional services in an- 
 other state, it has been held that their compensation will be gov- 
 erned by the value of such services in the state of the attorney's 
 residence, rather than in the state in which the services were per- 
 formed.'" But it has also been held that, in an action for serv- 
 ices rendered in another state, the attorney must allege and prove 
 that such action could be maintained under the laws of such other 
 state, because, in the absence of such allegation and proof, it would 
 be presumed that the common-law rule prevailed, and that there 
 could be no recovery.* It will be remembered in this connection, 
 however, that the common-law rule, prohibiting the recovery of 
 compensation by attorneys for professional services, never did pre- 
 vail in many of the states.' 
 
 § 544. Fees Fixed by Court. — In several jurisdictions the 
 amount of compensation to which an attorney is entitled in cer- 
 tain proceedings may be fixed by the court,' and this is especially 
 
 wsteenerson v. Waterbury, 52 139; Lilly v. Robinson Mercantile 
 
 Minn. 211, 53 N. W. 1146. Co., 153 S. W. 820. 
 
 20 Stanberry v. Dickerson, 35 la. California. — Keid v. Warren Imp. 
 
 493. See also Stevens v. Ellsworth, Co., 17 Cal. App. 746, 121 Pac. 694. 
 
 95 la. 231, 63 N. W. 683. Kentucky.— Fetij v. Nelson, 144 
 
 As to the right to compensation for Ky. 1, 137 S. W. 783 ; Gaylord v. Nel- 
 
 services performed in a state wherein son, 7 Ky. L. Eep. 821. 
 
 the attorney is not admitted to prac- Louisiana. — Dorsey v. His Credi- 
 
 tlce, see gupro, § 23. tors, 5 Mart. N. S. 399; Baldwin v. 
 
 1 Williams v. Dodge, 8 Misc. 317, Carleton, 15 La. 394. 
 
 28 N. Y. S. 729. Massachusetts.— T!ait v. Shaw, 159 
 
 2 See supra, § 404. Mass. 592, 35 N. E. 88, 
 8 Arkansas.— Sea v. Welch, 38 Ark. 
 
934 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 545 
 
 true as to compensation for services rendered in suits in equity.* 
 As a general rule, the court's decision, in cases of this character, 
 is based either on the evidence in the cause, or on evidence taken 
 for the special purpose of ascertaining the value of the attorney's 
 services.^ But in some jurisdictions, under statutory regulation, 
 the court acts as an expert,® guided only by a conscientious esti- 
 mate of the value of the services rendered.'' It is not bound by 
 the plaintiff's testimony,' or by that of witnesses.' The court may, 
 however, call to its aid the evidence of members of the bar.*" The 
 order of the court, in such cases, has the force and effect of the 
 verdict of a jury,** and is presumptive evidence of the fact that 
 the fees allowed are not exorbitant.** Nor will it be reversed by 
 an appellate tribunal unless it clearly appears to be unjust.** 
 
 Expert Testimony. 
 
 § 545. Necessity of Expert Testimony. — While, as stated 
 heretofore, it is incumbent on an attorney who sues for compensa- 
 tion to prove the value of his services,** it is not necessary that he 
 should do so by the testimony of expert witnesses ; ** any other com- 
 
 OJclahoma. — ^McDonald v. Carpen- 
 ter, 11 Okla. 115, 65 Pac. 942. And 
 see also supra, §§ 480-483. 
 
 4 Ko-crs V. O'Mary, 95 Tenn. 514, 
 32 S. W. 462 ; Horton v. GiUinwatera, 
 (Tenn.) 41 S. W. 1083; Taylor v. 
 Badoux, (Tenn.) 58 S. W. 919. And 
 see also supra, §§ 477-479. 
 
 5 Bell V. Welch, 38 Ark. 139. 
 
 6 Baldwin v. Carleton, 15 La. 394; 
 Eabasse's Succession, 51 La. Ann. 
 590, 25 So. 326; Dinkelspiel v. Pons, 
 119 La. 236, 43 So. 1018. 
 
 T Edelin v. Richardson, 4 La. Ann. 
 502; Dinkelspiel v. Pons, 119 La. 
 236, 43 So. 1018. 
 
 8 Germania Safety Vault & Trust 
 Co.'s Assignee v. Hargis, 64 S. W. 
 516, 23 Ky. L. Rep. 874. 
 
 9 Dorsey v. His Creditors, 5 Mart. 
 N. S. (La.) 399; Succession of Ma- 
 carty, 3 La. Ann. 517; Succession of 
 
 Lee, 4 La. Ann. 578; Cullom v. Mock, 
 21 La. Ann. 687; Randolph v. Car- 
 roll, 27 La. Ann. 467; Dinkespiel v. 
 Pons, 119 La. 236, 43 So. 1018. 
 
 lOMcMullen v. Reynolds, 209 111. 
 504, 70 N. E. 1041, reversing 105 111. 
 App. 386; Succession of Jackson, 30 
 La. Ann. 463. 
 
 11 Hall V. Gunter, 157 Ala. 375, 47 
 So. 155. 
 
 18 Hays V. Johnson's Adm'r, 99 S. 
 W. 332, 30 Ky. L. Rep. 614. 
 
 13 Dills V. Auxier, 85 S. W. 743, 
 27 Ky. L. Rep. 531. 
 
 14 See supra, § 529. 
 
 15 Calif orrUa. — Spencer v. Collins, 
 156 Cal. 298, 20 Ann. Cas. 49, 104 
 Pac. 320. 
 
 Colorado. — Bourke v. Whiting, 19 
 Colo. 1, 34 Pac. 172. 
 
 Kansas. — Noftzger v. Moffett, 63 
 Kan. 354, 65 Pac. 670. 
 
§ 546] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 935 
 
 petent evidence which establishes the character and importance of 
 the litigation or other business wherein the services were rendered, 
 the time spent thereon, the labor involved, and the result, will be 
 sufficient for this purpose.** It seems to be conceded, however, 
 that the value of an attorney's services can best be shown by the 
 evidence of those persons who are engaged in the same profes- 
 sion," and, therefore, testimony of this character is sanctioned by 
 reason and usage where the question involved is one of reasonable 
 compensation.'' 
 
 § 546. Admissibility of Expert Testimony. — It is univer- 
 sally agreed that expert testimony may be introduced for the pur- 
 
 Miohigan. — ^Kelley v. Richardson, 
 69 Mich. 430, 37 N. W. 514. 
 
 Missouri. — Gibbons v. Missouri Pac. 
 K. Co., 40 Mo. App. 146. 
 
 16 Noftzger v. Moffett, 63 Kan. 354, 
 65 Pac. 670. 
 
 11 Illinois. — Louisville, N. A. & C. 
 R. Co. V. Wallace, 136 111. 87, 26 N. 
 E. 493, 11 L.R.A. 787. 
 
 Indiana. — Blizzard v. Applegate, 61 
 Ind. 368. 
 
 Kentucky. — Morehcad v. Anderson, 
 125 Ky. 77, 100 S. W. 340. 
 
 Minnesota. — Allis v. Day, 14 Minn. 
 516. 
 
 Permsylvania. — Thompson v. Boyle, 
 85 Pa. St. 477. 
 
 "Clark V. Ellsworth, 104 la. 442, 
 73 N. W. 1023. And see the section 
 following. 
 
 "The question [the value of an 
 attorney's services] is one upon which, 
 from the nature of the case, it is not 
 practicable to furnish more definite 
 evidence than the opinions of wit- 
 nesses who show themselves qualified 
 to form w.ell-grounded estimates of 
 such value by their familiarity with 
 the department of business in which 
 such services have been rendered. 
 
 . . . There is no fixed standard by 
 which their value can be determined; 
 their value and reasonable price vary 
 with the magnitude and importance 
 of the particular case, the degree of 
 responsibility attaching to its man- 
 agement, the difficulty of the ques- 
 tions involved, the ability and reputa- 
 tion of counsel engaged, the labor be- 
 stowed, and other matters which will 
 readily occur to the profession. The 
 experience and knowledge of ordinary 
 jurymen do not qualify them to form 
 an opinion as to the value of services 
 of this kind. ... On the ether 
 hand, practicing lawyers occupy the 
 position of experts as to questions of 
 this nature; from the character of 
 their business they are not only in 
 the habit of estimating the value of 
 professional services, but they f-njoy 
 peculiar advantages for • so doing; 
 their opinions of such value should 
 therefore be received, not only because 
 they are qualified to perform them, 
 but because it appears to be imprac- 
 ticable to furnish any more satisfac- 
 tory evidence." Allis v. Day, 14 
 Minn. 516. 
 
936 
 
 ACTIONS TO KECOVEK COMPENSATION. 
 
 [§ 546 
 
 pose of establishing the reasonable value of an attorney's services," 
 and this, it seems, is true even though such services consisted of a 
 commingling of professional and business aid.^* Indeed, testi- 
 
 19 United States. — Head v. Har- 
 grave, 105 U. S. 45, 26 U. S. (L. ed.) 
 1028; Greeff v. Miller, 87 Fed. 33. 
 
 Alabama. — Fuller v. Stevens, 39 So. 
 623. 
 
 California. — Crescent Canal Co. v. 
 Montgomery, 126 Cal. 197, 61 Pac. 
 940; Fairchild v. Whitmore, 6 Cal. 
 App. 52, 91 Pac. 336. 
 
 Colorado. — Bachman v. O'Keilley, 
 14 Colo. 433, 24 Pac. 546; Fairbanks, 
 Morse & Co. v. Weeber, 15 Colo. App. 
 268, 62 Pac. 368; Wilson v. Union 
 Distilling Co., 16 Colo. App. 429, 66 
 Pac. 170. 
 
 Illinois. — Jevne v. Osgood, 57 111. 
 340; Haish v. Payson, 107 111. 365, 
 5 Ky. L. Rep. 1, 15 Chicago Leg. N. 
 307; Louisville, N. A. & C. R. Co., v. 
 Wallace, 136 111. 87, 26 N. E. 493, 
 11 L.R.A. 787 ; Lee v. Lomax, 219 111. 
 218, 76 N. E. 377; Levinson v. Sands, 
 74 111. App. 273; Sexton v. Bradley, 
 110 111. App. 495. 
 
 Indiana. — Covey v. Campbell, 52 
 Ind. 157. 
 
 /moa. — Clark v. Ellsworth, 104 la. 
 442, 73 N. W. 1023. 
 
 Kansas. — Anthony v. Stinson, 4 
 Kan. 211; Ottawa University v. Par- 
 kinson, 14 Kan. 159; Central Branch 
 Union Pac. R. Co. v. Nichols, 24 Kan. 
 242; Gregory Grocery Co. v. Beaton, 
 JO Kan. App. 256, 62 Pac. 732. 
 
 Kentucky. — Morehead v. Anderson, 
 125 Ky. 77, 100 S. W. 340; Reed v. 
 Reed, 74 S. W. 207, 24 Ky. L. Rep. 
 2438. 
 
 Louisiana. — Jackson's Succession, 
 30 La. Ann. 463; Dinkelspiel v. Pons, 
 119 La. 236, 43 So. 1018. 
 
 Massachusetts. — Hunneman v. 
 Phelps, 199 Mass. 15, 85 N. E. 169. 
 
 Michigan. — Kelley v. Richardson, 69 
 Mich. 430, 37 N. W. 514; TurnbuU v. 
 Richardson, 69 Mich. 400, 37 N. W. 
 499; Chamberlain v. Rodgers, 79 Mich. 
 219, 44 N. W. 598. 
 
 Minnesota. — Allis v. Day, 14 Minn. 
 516; Calhoun v. Akeley, 82 Minn. 354, 
 85 N. W. 170. 
 
 Mississippi. — ^New Orleans, J. & G. 
 N. R. Co. V. Allbritton, 38 Miss. 242, 
 75 Am. Dec. 98. 
 
 Missouri. — Brown v. Huffard, 69 
 Mo. 305; State v. Seavey, 137 Mo. 
 App. 1, 119 S. W. 17. 
 
 New York. — Beekman v. Plainer, 15 
 Barb. 550; Garfield v. Kirk, 65 Barb. 
 464; Clussman v. Merkel, 3 Bosw. 402; 
 TurnbuU v. Ross, 5 Daly 130; Hatnett 
 V. Garvey, 66 N. Y. 641; Bramble v. 
 Hunt, 68 Hun 204, 22 N. Y. S. 842; 
 Smith V. Hoctor, 51 Misc. 649, 99 N. 
 Y. S. 843. 
 
 Ohio. — Williams v. Brown, 28 Ohio 
 St. 547; Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Eul. 249; Holmes v. Holland, 11 Ohio 
 Dec. (Reprint) 768, 29 Cine. L. Bui. 
 115. 
 
 Pennsylvania. — Thompson v. Boyle, 
 85 Pa. St. 477. 
 
 South Dakota. — Frye v. Ferguson, 6 
 S. D. 392, 61 N. W. 161; Fowler v. 
 Iowa Land Co., 18 S. D. 131, 99 N. W. 
 1095. 
 
 Vermont. — ;Carpenter v. Gibson, 82 
 Vt. 336, 73 Atl. 1030. 
 
 20 Kelley v. Richardson, 69 Mich. 
 430, 37 N. W. 514. 
 
§ 547] ACTIONS TO EECOVEE COMPENSATION. 937 
 
 mony of this character does not differ in principle from expert evi- 
 dence as to the value of labor in other departments of business, or 
 as to the value of property.^ So, opinion evidence is competent as 
 to the necessity of making certain disbursements,^ and as to the 
 character of the services rendered,' and whether they were rea- 
 sonably required for the proper conduct of the case.* 
 
 But where an attorney's right to compensation, and the amount 
 thereof, has been fixed by a valid subsisting contract with his 
 client, the parties will be bound thereby, and there is no room for 
 the introduction of expert testimony as to the value of the attor- 
 ney's services." Of course, there are instances wherein the reason- 
 able value of professional services may be established by expert 
 testimony notwithstanding the existence of a contract of employ- 
 ment; thus, such proof is admissible where the amount of com- 
 pensation is not fixed by the contract,* and as to the value of serv- 
 ices rendered beyond its scope.'' But an attorney who has been 
 discharged from a case which he was employed to conduct for a 
 contingent fee, cannot, in an action for his compensation, intro- 
 duce expert testimony for the purpose of showing what would 
 have been the result of the case if he had been allowed to continue 
 the prosecution thereof.' 
 
 § 547. Qualification of Expert Witness. — It is absolutely 
 necessary that the witness, whose opinion evidence is offered, 
 should be one duly qualified to so testify.* As a general rule, a 
 witness will be deemed to be sufficiently qualified to give his 
 opinion as to the value of counsel services where it appears that 
 
 1 Head v. Hargrave, 105 U. S. 45, 26 e See supra, § 442. 
 U. S. (L. ed.) 1028; Clark v. Ells- ''See supra, § 441. 
 
 worth, 104 la. 442, 73 N. W. 1023 ; 8 Breathitt Coal, Iron & Lumber Co. 
 
 Coagrove v. Leonard, 134 Mo. 419, 33 v. Gregory, 78 S. W. 148, 25 Ky. L. 
 
 S. W. 777, 35 S. W. 1137; Kittredge Rep. 1507; Aldrich v. Brown, 103 
 
 V. Armstrong, 11 Ohio Dec. (Reprint) Mass. 527. 
 
 661, 28 Cine. L. Bui. 249. 9 Wilson v. Hart, 129 HI. App. 329; 
 
 2 Artz u. Robertson, 50 111. App. 27. Blizzard v. Applegate, 61 Ind. 368; 
 
 3 Garfield v. Kirk, 65 Barb. (N. Y.) Fry v. Estes, 52 Mo. App. 1; State v. 
 464. Seavey, 137 Mo. App. 1, 119 S. W. 
 
 4 Artz V. Robertson, 50 111. App. 27. 17. 
 
 5 See supra, § 439. 
 
938 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 547 
 
 he is a member of the bar in good standing and engaged in active 
 practice ; ^^ and it has been held that expert testimony is none the 
 less competent because the witness was not actively engaged in the 
 practice of his profession,'^ or that he had no actual experience 
 in the rendition of services similar to those performed by the 
 plaintiff.'^ So, the plaintiff may testify in his own behalf as to 
 his knowledge of the charges of other attorneys for services simi- 
 lar to those rendered by him.'^ Some cases support the view that 
 opinion evidence as to the value of an attorney's services can only 
 be given by lawyers,'* and it is to be observed that in practically 
 all of the cases cited in the preceding sections of this subdivision, 
 the witnesses called as experts were, in fact, members of the bar ; '* 
 on the other hand, it has been held that any one who is familiar 
 with the customary and usual charges of lawyers for services sim- 
 ilar to those for which compensation is sought, and in the locality 
 where such services were rendered, may qualify as an expert in 
 this respect, even though he is not a member of the bar.'® 
 
 10 Bachman v. O'Reilly, 14 Colo. 
 433, 24 Pac. 546; Ottawa University 
 V. Parkinson, 14 Kan. 159. See also 
 Central Branch Union Pac. E. Co. v. 
 Nichols, 24 Kan. 242. 
 
 H Blizzard v. Applegate, 61 Ind. 
 368; Hand v. Church, 39 Hun (N. Y.) 
 303. 
 
 12 Bachman v. O'Eeilly, 14 Colo. 433, 
 24 Pac. 546. 
 
 Compare Bettens v. Fowler, 51 
 Super. Ct. (N. Y.) 166, wherein a 
 referee's finding, that an attorney's 
 services were worth a certain sum, 
 vras set aside where it appeared that 
 the witnesses, on whose testimony the 
 finding was based, were unfamiliar 
 with the rates of customary charges 
 in similar cases, and where witnesses 
 possessing the requisite familiarity 
 testified that the services were worth 
 much less. 
 
 13 Babbitt v. Bumpus, 73 Mich. 331, 
 41 N. W. 147, 16 Am. St. Rep. 585. 
 
 Where an attorney is testifying as 
 an expert to the value of professional 
 services rendered by himself, it is dis- 
 cretionary with the court whether he 
 may be cross-examined as to the 
 amount of his income. Harland v. 
 Lilienthal, 53 N. Y. 438. 
 
 l*Hart V. Vidal, 6 Cal. 56; Howell 
 V. Smith, 108 Mich. 350, 66 N. W. 218. 
 See also Gregory .Grocery Co. v. 
 Beaton, 10 Kan. App. 256, 62 Pac. 
 732. 
 
 15 See supra, §§ 545-550. 
 
 16 United States, — ^Head v. Har- 
 grave, 105 U. S. 45, 26 U. S. (L. ed.) 
 1028. 
 
 Indiana. — McNiel v. Davidson, 37 
 Ind. 336. 
 
 Kansas. — Gregory Grocery Co. v. 
 Beaton, 10 Kan. App. 256, 62 Pac. 
 732. 
 
 Kentucky. — Gaither v. Dougherty, 
 38 S. W. 2, 18 Ky. L. Rep. 709. 
 
§' 548] ACTIONS TO EECOVEE COMPENSATION. 939 
 
 § 548. Knowledge of Charges in Particular Locality. — 
 
 In some jurisdictions it is held that, in order to be competent to 
 testify as an expert as to the reasonable value of an attorney's 
 compensation, it is essential that the witness should be familiar 
 with the usual and customary charges for similar services in the 
 locality wherein the services involved were performed." This 
 rule is based on the theory that the compensation usually paid to 
 lawyers varies so much that what would be a reasonable charge in 
 one place cannot be regarded as a criterion for what would be a 
 reasonable charge for the same services in another place. Lawyers, 
 in charging fees, are governed not only by the length of time con- 
 sumed by their services, the amount in controversy, and the im- 
 portance and difficulty of the issues involved, but also by the cost 
 of living and the expense of maintaining a suitable office and of- 
 fice force. Indeed, it is a matter of common knowledge that at- 
 torney's fees are higher in some states than in others, and, in the 
 same state, are much higher in large cities than in small towns; 
 and frequently there is a marked difference in this respect even 
 between cities or towns of equal size and importance. ^^ Thus, it 
 has been held to be error to permit Chicago attorneys, who were 
 familiar only with the charges made there, to testify as to what 
 was a reasonable charge for services rendered in Arizona ; ^^ but 
 it has also been held that a lawyer, who was familiar only with 
 the customary charges for professional services in ISTebraska, might 
 be permitted to testify as to the value of professional services ren- 
 dered in South Dakota, there being nothing to indicate that their 
 value should be estimated \ipon a different basis or by a different 
 rule.*" Where a hypothetical question shows where the services 
 in question were rendered, it is not necessary that it ask expressly 
 what the value thereof was at that place.** 
 
 Michigan. — ^ICelley D Richardson, N. W. 683 ; Clark v. Ellsworth, 104 la. 
 
 69 Mich. 430, :i7 N. W. 514. 442, 73 N. W. 1023. 
 
 New Yor/c.—Hand v. Church, 39 18 State v. Seavey, 137 Mo. App. 1, 
 
 Hun 303. 119 S. W. 17. 
 
 OAio.— Kittredge, v. Armstrong, 11 w Wilson v. Hart, 129 111. App. 329. 
 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 20 Frye v. Ferguson, 6 S. D. 392, 61 
 
 Bui. 249. N. W. 161. 
 
 " Wi!?o 1 r. Hart, 129 111. App. 329; 21 Clark v. Ellsworth, 104 la. 442, 
 
 Stevens v Ellsworth, 95 la. 232, 63 73 N. W. 1023. 
 
940 
 
 ACTIONS TO EEOOVEB COMPENSATION. 
 
 [§ 549 
 
 § 549. Basis of Opinion. — The opinion evidence of experts 
 as to the value of professional services must be based on the ac- 
 tual facts in the case v^herein the services vi^ere rendered ; ^ and 
 the usual inquiry is as to what is the customary charge,^ or what is 
 a fair and reasonable charge, for the services rendered,* taking into 
 consideration the nature and character thereof, the labor, time, and 
 trouble involved, the nature and importance of the litigation or 
 other business in which the plaintiff was engaged as an attorney, 
 the amount of money or the value of the property involved, the 
 skill and experience called for, and the professional character and 
 standing of the attorney ; * these matters have been specifically con- 
 sidered heretofore.' In some states the reasonable value of a re- 
 taining fee may also be taken into consideration by the witness.' 
 It has also been held that a qualified witness may base his opinion 
 
 i Illinois. — People's Casualty Claim 
 Adjustment Co. v. Darrow, 70 111. App. 
 22, affirming 172 111. 62, 49 N. E. 1005. 
 
 Indiana. — Covey v. Campbell, 52 
 Ind. 157. 
 
 louM. — Clark v. Ellsworth, 104 la. 
 442, 73 N. W. 1023. 
 
 Kansas. — Central Branch Union 
 Pac. E. Co. V. Nichols, 24 Kan. 242. 
 
 KentucTcy. — Morehead's Trustee v. 
 Anderson, 125 Ky. 77, 100 S. W. 340. 
 
 Michigan. — Turnbull v. Richardson, 
 69 Mich. 400, 37 N. W. 499; Kelley v. 
 Richardson, 69 Mich. 430, 37 N. W. 
 514. 
 
 Missouri. — Southgate v. Atlantic & 
 P. R. Co., 61 Mo. 89. 
 
 'New York. — Clussman v. Merkel, 3 
 Bosw. 402; Harnett v. Garvey, 66 N. 
 Y. 641. 
 
 Ohio. — Williams v. Brown, 28 Ohio 
 St. 547. 
 
 2 Wilson V. Union Distilling Co., 16 
 Colo. App. 429, 66 Pac. 170; Jevne v. 
 Osgood, 57 111. 340; Louisville, N. A. 
 & C. R. Co. V. Wallace, 136 111. 87, 26 
 ix. E. 493, 11 L.R.A. 787; Maneaty v. 
 
 Steele, 112 111. App. 19; Bettens v. 
 Fowler, 51 Super. Ct. (N. Y.) 166. 
 
 8 Louisville, N. A. & C. R. Co. v. 
 Wallace, 136 111. 87, 26 N. E. 493, 11 
 L.R.A. 787; Sexton v. Bradley, 110 
 111. App. 495. 
 
 4 Illinois. — Haish v. Payson, 107 111. 
 365; Louisville, N. A. & C. R. Co. v. 
 Wallace, 136 111. 87, 26 N. E. 493, 11 
 L.R.A. 787. 
 
 Indiana. — Covey v. Campbell, 52 
 Ind. 157. 
 
 Iowa. — Clark v. Ellsworth, 104 la. 
 442, 73 N. W. 1023. 
 
 Kansas. — Central Branch Union 
 Pac. R. Co. V. Nichols, 24 Kan. 242. 
 
 Kentucky. — Morehead v. Anderson, 
 125 Ky. 77, 100 S. W. 340. 
 
 Massachusetts. — Aldrich v. Brown, 
 103 Mass. 527; Caverly v. McOwen, 
 123 Mass. 574. 
 'New yorfc.— Garfield v. Kirk, 65 
 Barb. 464; Harland v. Lilienthal, 53 
 N. Y. 438; Schlesinger v. Dunne, 36 
 Misc. 529, 73 N. Y. S. 1014. 
 
 6 See supra, §§ 534^542. 
 
 « Roche V. Baldwin, 143 Cal. 186, 76 
 Pac. 956. See also supra, § 406. 
 
§ 550] ACTIONS TO EECOVEE COMPENSATION. 941 
 
 on his personal knowledge of the facts,'' or both on his personal 
 knowledge and the evidence in the cause.' So, also, evidence of 
 the character indicated may be introduced by the defendant, or 
 brought out by his cross-examination of the plaintiff's witnesses.' 
 But the plaintiff cannot read in evidence a judicial opinion and 
 incorporate an extract therefrom in a hypothetical question, ad- 
 dressed to an expert, as to the value of professional services.^" 
 
 § 550. Weight of Expert Evidence. — The general rule is 
 that, although entitled to great weight, the evidence of experts as 
 to the value of an attorney's services is not conclusive, but that it 
 should be intelligently examined by the jury in the light of their 
 own general knowledge,*^ and the other evidence in the case, in 
 
 ''Ottawa University v. Parkinson, 
 14 Kan. 159; Brown v. Huffard, 69 
 Mo. 305. . 
 
 8 Garfield v. Kirk, 65 Barb. (N. Y.) 
 464. 
 
 9 Fuller V. Stevens, (Ala.) 39 So. 
 623. 
 
 10 Crawford v. Tyng, 2 Misc. 469, 21 
 N. Y. S. 1041. 
 
 11 United States. — Head v. Har- 
 grave, 105 U. S. 45, 26 U. S. (L. ed.) 
 1028; Sanders v. Graves, 105 Fed. 849, 
 affirmed 125 Fed. 690, 60 C. C. A. 422. 
 
 California. — In re Borland, 63 Cal. 
 281. 
 
 Colorado. — Bourke v. Whiting, 19 
 Colo. 1, 34 Pac. 172. 
 
 Illinois. — Lee v. Lomax, 219 111. 218, 
 76 N. E. 377; Dorsey v. Corn, 2 111. 
 App. 533; Crane v. Roselle, 157 111. 
 App. 595. 
 
 Indiana. — Williams v. Boyd, 75 Ind. 
 286. 
 
 Iowa. — Arndt v. Hosford, 82 la. 499, 
 48 N. W. 981 ; Clark v. Ellsworth, 104 
 la. 442, 73 N. W. 1023; Graham v. 
 Dillon, 144 la. 82, 121 N. W. 47. 
 
 Kansas. — Noftzger v. Moffett, 63 
 Kan. 354, 65 Pac. 670. 
 
 Kentucky. — Morehead v. Anderson, 
 125 Ky. 77, 100 S. W. 340. 
 
 Louisiana. — Randolph v. Carroll, 27 
 La. Ann. 467 ; Dinkelspiel v. Pons, 119 
 La. 236, 43 So. 1018. 
 
 Michigan. — Turnbull v. Richardson, 
 69 Mich. 400, 37 N. W. 499. 
 
 Missouri. — Rose v. Spies, 44 Mo. 
 20; Cosgrove v. Leonard, 134 Mo. 419, 
 33 S. W. 777, 35 S. W. 1137; Gibbons 
 V. Missouri Pac. R. Co., 40 Mo. App. 
 146; Kingsbury v. Joseph, 94 Mo. 
 App. 298, 68 S. W. 93 ; Brownrigg v. 
 Massengale, 97 Mo. App. 190, 70 S. W. 
 1103. 
 
 New YorA;.— Chatfield v. Hewlett, 2 
 Dem. 191; Bramble v. Hunt, 68 Hun 
 204, 22 N. Y. S. 842; Mack v. Miller, 
 87 App. Div. 359, 84 N. Y. S. 440; 
 Schlesinger v. Dunne, 36 Misc. 529, 
 10 N. Y. Ann. Cas. 350, 73 N. Y. S. 
 1014; Pendleton v. Johnston, 59 
 Super. Ct. 331, 14 N. Y. S. 629, 
 affirmed 133 N. Y. 678, 31 N. E. 626. 
 
 Ohio. — Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249 ; Holmes v. Holland, 11 Ohio 
 Dec. (Reprint) 768, 29 Cine. L. Bui. 
 115. 
 
942 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 551 
 
 arriving at their verdict/* and given credit according to its 
 worth." 
 
 Where, however, the only evidence offered to prove the 
 value of professional services is that given by witnesses who tes- 
 tify as experts, there is some conflict of opinion as to its conclu- 
 siveness ; thus it has been held in some cases that the jury will be 
 bound by the opinion evidence,** while in other cases it has been 
 held that expert testimony, even though uncontradicted, is not con- 
 clusive.** But it is beyond question that expert evidence of the 
 character under discussion may, of itself, be sufficient to support 
 a verdict based thereon.*® 
 
 Defenses. 
 
 § 551. Generally. — The defendant in an action for the re- 
 covery of counsel fees may avail himself of any defense which, un- 
 
 Texas. — International & G. N. K. 
 Co. V. Clark, 81 Tex. 48, 16 S. W. 631, 
 48 Am. & Eng. K. Cas. 81. 
 
 Washington. — Jones v. Jones, 72 
 Wash. 517, 130 Pac. 1125. 
 
 Wisconsin. — Remington v. Eastern 
 E. Co., 109 Wis. 154, 84 N. W. 898, 85 
 N. W. 321. 
 
 ^^ Iowa. — Arndt v. Hosford, 82 la. 
 499, 48 N. W. 981. 
 
 Kentucky. — Jordan v. Swift Iron & 
 Steel Works, 13 Ky. L. Eep. 970, 14 
 Ky. L. Rep. 194. 
 
 Michigan. — Turnbull v. Richardson, 
 69 Mich. 400, 37 N. W. 499. 
 
 Missouri. — Rose v. Spies, 44 Mo. 
 20; Cosgrove v. Burton, 104 Mo. App. 
 698, 78 S. W. 667. 
 
 New York. — Randall v. Packard, 1 
 Misc. 344, 20 N. Y. S. 716, affirmed 
 142 N. Y. 47, 36 N. E. 823; Reves v. 
 Hyde, 14 Daly 431, 13 Civ. Proe. 323, 
 14 N. Y. St. Rep. 689. 
 
 Ohio. — Kittredge v. Armstrong, 11 
 Ohio Dec. (Reprint) 661, 28 Cine. L. 
 Bui. 249. 
 
 13 Blizzard v. Applegate, 61 Ind. 
 368. 
 
 1* United States. — Sanders v. Graves, 
 105 Fed. 849, affirmed 125 Fed. 690, 60 
 C. C. A. 422. 
 
 Alabama. — Moore v. Watts, 81 Ala. 
 261, 2 So. 278. 
 
 Illinois. — Williams v. Reynolds, 86 
 111. 263. 
 
 Kentuchy. — Reed v. Reed, 74 S. W. 
 207, 24 Ky. L. Rep. 2438. 
 
 Michigan. — See Wood v. Barker, 49 
 Mich. 295, 13 N. W. 597; Walbridge 
 V. Barrett, 118 Mich. 433, 76 N. W. 
 973. 
 
 Texas. — See Herndon v. Lammers, 
 55 S. W. 414. 
 
 Wisconsin. — Cotzhausen v. Central 
 Trust Co., 79 Wis. 613, 49 N. W. 158. 
 
 15 Holm v. Parmele-Eccleston Co., 
 13 Misc. 317, 34 N. Y. S. 458; Sehle- 
 singer v. Dunne, 36 Misc. 529, 10 N. Y. 
 Ann. Cas. 350, 73 N. Y. S. 1014; 
 Steele v. Hammond, 136 App. Div. 667, 
 121 N. Y. S. 589. 
 
 16 Hazeltine v. Broekway, 26 Colo. 
 
551] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 943 
 
 der the local practice, may be set up in any other action based upon 
 an express or implied contract." Thus, he may show that he never 
 employed the plaintiff/' or that the plaintiff failed to perforin the 
 business undertaken by him,'* or was guilty of misconduct in re- 
 spect thereto,'" or that the contract for compensation was unfair 
 or otherwise tainted with fraud or illegality,* as, for instance, that 
 it was champertous,* or that the plaintiff was not, in fact, a quali- 
 fied attorney at law.^ So, the defendant may assert the right of 
 set-off and counterclaim.* Of course, any defense set up must be 
 
 291, 57 Pac. 1077; Pickett v. Gore, 
 (Tenn.) 58 S. W. 402. 
 
 "Bridges v. Paige, 13 Cal. 641. 
 And see the following sections of this 
 subdivision. 
 
 iSFairchild v. Whitmore, 6 Cal. 
 App. 52, 91 Pac. 336 ; Kellogg V. Row- 
 land, 40 App. Div. 416, 57 N. Y. S. 
 1064; Altkrug V. Horowitz, 111 App. 
 Div. 420, 97 N. Y. S. 716; McDonald 
 V. American Mortgage Co., 17 Ore. 
 626, 21 Pac. 883; Safford v. Vermont 
 & C. R. Co., 60 Vt. 185, 14 Atl. 91. 
 
 As to the necessity of proving em- 
 ployment, see supra, §§ 507-522. 
 
 19 A lahama. — Walker v. Cuthbert, 
 10 Ala. 213. 
 
 Arkansas. — Brodie v. Watkins, 33 
 Ark. 545, 34 Am. Rep. 49. 
 
 California. — Foltz v. Cogswell, 86 
 Cal. 542, 25 Pac. 60. 
 
 Kentucky. — Majors v. Hickman, 2 
 Bibb 217. 
 
 Michigan. — Wildey v. Crane, 69 
 Mich. 17, 36 N. W. 734; Moran V. 
 L'Etourneau, 118 Mich. 159, 76 N. W. 
 370, 5 Detroit Leg. N. 471. 
 
 Weio York. — Wendell v. Lewis, 8 
 Paige 613 ; Frost v. Frost, 1 Barb. Ch. 
 492;, Holmes v. Evans, 59 Super. Ct. 
 136, 13 N. Y. S. 614, affirmed 129 N. 
 Y. 140, 29 N. E. 233. 
 
 Texas.— Shaw v. Threadgill, 53 Tex. 
 Civ. App. 254, 115 S. W. 671; Hlggins 
 
 V. Matlock, Miller & Dycus, 95 S. W. 
 571. 
 
 As to the necessity of proving per- 
 formance, see supra, §§ 523-528. 
 
 May Recover on Note before Per- 
 formance. — ^An attorney, taking a note 
 payable on demand for a fee under an 
 agreement to prosecute a suit as rap- 
 idly as possible, can recover on the 
 note before the final hearing of such 
 suit. Burke v. Dorey, 208 Mass. 45, 
 94 N. E. 291. 
 
 20 Ignorance or negligence, see infra, 
 § 553. Fraud or bad faith, see infra, 
 § 555. 
 
 Loss of compensation hy compro- 
 mising case without authority. — An 
 attorney who compromises his client's 
 case against the lattBr's express 
 direction is not entitled to any com- 
 pensation. Rogers v. Pettigrew, 138 
 Ga. 528, Ann. Cas. 1913D 409, 75 
 S. E. 631, 42 L.R.A.(N.S.) 852. 
 
 1 See supra, §§ 428-438. 
 
 2 See supra, §§ 386-394. 
 
 3 Muligan v. Smith, 32 Colo. 404, 76 
 Pac. 1063. See also supra, § 23. 
 
 * Colorado. — Bourke v. Whiting, 19 
 Colo. 1, 34 Pac. 172. 
 
 Illinois. — Bennett v. Connelly, 103 
 111. 50. 
 
 Indiana. — Lupton v. Taylor, 39 Ind. 
 App. 412, 78 N. E. 689, rehearing 
 denied 39 Ind. App. 420, 79 N. E. 523. 
 
944 
 
 ACTIONS TO KECOVEE COMPENSATION. 
 
 [§ 552 
 
 established by competent evidence,' to the satisfaction of the 
 jury.^ 
 
 § 552. Defense Must Be Meritorious. — It is essential, how- 
 ever, in all cases that the defense asserted should be a meritorious 
 one. Thus, the defendant will not be permitted to prove, as a de- 
 fense, that the business undertaken by the attorney was adjusted 
 with less labor than had been anticipated,'' and without litigation,' 
 or that the case was without merit,^ or that other persons were 
 benefited by the plaintiff's services," or that the defendant had 
 also employed other counsel in the same cause,^' or that the attor- 
 ney's services did not result beneficially to the client,^^ or that the 
 plaintiff was a lawyer of limited experience,** or that he was dis- 
 barred subsequently to the rendition of the services in question,''* 
 or that, a long time prior to the employment involved, the plain- 
 tiff had offered to take, for his services, a compensation less than 
 the amount sued for.*' 'Sot does the fact that subsequently to his 
 employment the attorney was appointed to a position where it be- 
 came his ofiioial duty to perform the services for which he had 
 
 Iowa. — Jamison v. Weaver, 81 la. 
 212, 46 N. W. 996. 
 
 Massachusetts. — Keith v. Marcus, 
 181 Mass. 377, 63 N. E. 924. 
 
 sCahill V. Baird, 138 Cal. 691, 72 
 Pac. 342, reversing 70 Pae. 1061; 
 Cusick V. Boyne, 1 Cal. App. 643, 82 
 Pac. 985; Goodrich v. Mott, 9 Vt. 395; 
 Smith V. Lenz, 143 Wis. 615, 128 N. 
 W. 280. 
 
 6 See infra, § 565. 
 
 7 Clark V. Ellsworth, 104 la. 442, 
 73 N. W. 1023 ; Walbridge v. Barrett, 
 118 Mich. 433, 76 N. W. 973, 5 De- 
 troit Leg. N. 562. 
 
 8 See supra, % 525. 
 
 9 Case V. Hotchkiss, 1 Abb. Dec. (N. 
 Y.) 324; Case v. Hotchkiss, 3 Keyes 
 (N. Y.) 334. 
 
 10 Kelly V. Ning Yung Benev. Ass'n, 
 2 Cal. App. 460, 84 Pac. 321. 
 
 11 Taylor v. Bosworth, 1 Ind. App. 
 
 54, 27 N". E. 115; Luchini v. Police 
 ■Tury, 126 La. 972, 21 Ann. Cas. 59, 53 
 So. 68; Webster v. Loeb, 112 Mo. App. 
 139, 86 S. W. 463. 
 
 12 French v. Cunningham, 149 Ind. 
 632, 49 N. E. 797; Fenner v. McCan, 
 49 La. Ann. 600, 21 So. 768; Caverly 
 V. McOwen, 126 Mass. 222; Niemann 
 V. Collyer, 71 Hun 612, 24 N. Y. S. 
 516; Tinney V. Pierrepont, 18 App. 
 Div. 627, 45 N. Y. S. 977; Bills v. 
 Polk, 4 Lea (Tenn.) 494. And see 
 Trimble v. Guardian Trust Co., 244 
 Mo. 228, 148 S. W. 934. 
 
 13 Shakespeare v. Baughman, 113 
 Mich. 551, 71 N. W. 874, 4 Detroit 
 Leg. N. 392. 
 
 14 Manning v. Borland, 83 Me 125, 
 21 Atl. 837. 
 
 isCrowell v. Truax, 94 Mich. 585, 
 54 N. W. 384. 
 
§ 553] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 945 
 
 been retained, prevent him from recovering the amount agreed 
 upon for the performance of such services prior to his appoint- 
 ment.^° Nor can the defendant show, by way of defense, that he 
 was harassed by the plaintiff," or that his funds were attached in 
 the attorney's hands,*' or that the attorney failed to deduct his fees 
 while the funds were in his custody,*' or, ordinarily, that there 
 was an agreement to arbitrate the claim sued for.*" 
 
 § 553. Negligence or Ignorance. — Where the client has suf- 
 fered loss or injury because of his attorney's ignorance or negli- 
 gence, that fact may be set up as a defense to an action for com- 
 pensation, for the services so performed, brought by the attorney.* 
 
 16 Detroit V. Whittemore, 27 Mich. 
 281. 
 
 "Davis V. Farwell, 80 Vt. 166, 67 
 Atl. 129. 
 
 18 Daigle v. Bird, 22 La. Ann. 138. 
 
 19 Walton V. Dickerson, 7 Pa. St. 
 376; Davis v. Farwell, 80 Vt. 166, 67 
 Atl. 129. 
 
 «o State Bank v. Martin, 4 Ala. 615. 
 
 1 England. — Hill v. Featherston- 
 haugh, 7 Bing. 569, 20 E. C. L. 244; 
 Sill V. Tliomas, 8 C. & P. 762, 34 E. C. 
 L. 624; Hill V. Allen, 2 M. & W. 284; 
 Long V. Orsie, 18 C. B. 610, 26 L. J. C. 
 PI. 127; In re Metropolitan Coal Con- 
 sumers' Ass'n, 45 Ch. D. 606. 
 
 Arkansas. — Rachels v. Doniphan 
 Lumber Co., 98 Ark. 529, 136 S. W. 
 658. 
 
 California. — Bridges v. Paige, 13 
 Cal. 640; In re Kruger's Estate, 130 
 Cal. 621, 63 Pac. 31; Hinckley v. 
 Krug, 34 Pac. 118. 
 
 Illinois. — Mansfield v. Wallace, 217 
 111. 610, 75 N. E. 682. 
 
 Indiana. — Pennington v. Nave, 15 
 Ind. 323; French v. Cunningham, 149 
 Ind. 632, 49 N. E. 797 ; O'Halloran v. 
 Marshall, 8 Ind. App. 394, 35 N. E. 
 926. 
 
 Attyg. at L. Vol. II.— 60. 
 
 Iowa. — Lindsay v. Carpenter, 90 la. 
 529, 58 N. W. 900; CuUison v. Lind- 
 say, 108 la. 124, 78 N. W. 847. 
 
 Kentiochy. — Thomas v. Mahone, 9 
 Bush 111; Morehead v. Anderson, 
 125 Ky. 77, 100 S. W. 340; Board of 
 Education v. Rankin, 142 Ky. 324, 134 
 S. W. 157; Buclceer v. Robinson, 96 
 S. W. 1110. 
 
 Maine. — Timberlake v. Crosby, 81 
 Me. 249, 16 Atl. 896. 
 
 Massachusetts. — Caverly v. Mc- 
 Owen, 126 Mass. 222. 
 
 New York. — Carter v. Tallcot, 36 
 Hun 393; Cole v. Roby, 61 Hun 624 
 mem., 16 N. Y. S. 20; Clussman v. 
 Merkel, 3 Bosw. 402 ; Gleason v. Clark, 
 9 Cow. 57; Hopping v. Quin, 12 Wend. 
 517; Leo v. Leyser, 36 Misc. 549, 73 
 N. Y. S. 941; Dickerson v. Mashek 
 Engineering Co., 76 Misc. 263, 134 N. 
 Y. S. 940. 
 
 Pennsylvania. — Chain v. Hart, 140 
 Pa. St. 374, 21 Atl. 442 ; In re Sloan, 
 161 Pa. St. 237, 28 Atl. 1084. 
 
 Vermont. — Nixon v. Phelps, 29 Vt. 
 198; Davis v. Farwell, 80 Vt. 166, 67 
 Atl. 129 ; Gordon v. Mead, 81 Vt. 36, 
 69 Atl. 134. 
 
946 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 553 
 
 Thus, the client may show in defense that his attorney was care- 
 less in the institution of legal proceedings,* or in the collection of 
 a claim,' or that he was unjustifiably dilatory in proceeding with 
 the defendant's business,* or made an unauthorized compromise of 
 the claim,* or that the cause was improperly conducted,^ or that 
 the plaintiif failed to introduce certain relevant and material evi- 
 dence,' or had given the defendant erroneous advice.* Nor can 
 an attorney recover compensation for services rendered in an ac- 
 tion wherein special evidence is made necessary by statute, unless, 
 prior to the commencement of such action, he has ascertained that 
 what the statute requires does, in fact, exist.^ And where an at- 
 torney has testified in his own behalf, he may be cross-examined 
 as to the manner in which he conducted the defendant's litigation 
 or other business, for the purpose of showing carelessness or un- 
 skillfulness on his part.^" In all cases it is essential, of course, 
 that a defense of the character under consideration should be es- 
 tablished by the defendant.*^ 
 
 Washington. — Farwell v. Colman, 
 35 Wash. 308, 77 Pac. 379. 
 
 Wisconsin. — Armin v. Loomis, 82 
 Wis. 86, 51 N. W. 1097. 
 
 8 Buckler v. Robinson, 96 S. W. 
 1110, 29 Ky. L. Rep. 1174; De Rose v. 
 Fay, 4 Edw. (N. Y.) 40. 
 
 3 Pennington v. Underwood, 56 Ark. 
 53, 39 S. W. 108. 
 
 4 Walsh V. Shumway, 65 111. 471; 
 Thorn v. Beard, 135 N. Y. 643 mem., 
 32 N. E. 140; Farwell v. Colman, 35 
 Wash. 308, 77 Pac. 379. 
 
 6 See supra, § 551, note 20. 
 
 6 Pearson v. Darrington, 32 Ala. 
 227; Von Wallhoffen v. Newcombe, 
 10 Hun. (N. Y.) 236. 
 
 T Lindsay v. Carpenter, 90 la. 529, 
 58 N. W. 900. 
 
 8 Hinckley v. Krug, (Cal.) 34 Pac. 
 118; Harlock v. Le Baron, 1 Civ. Proc. 
 (N. Y.) 168. 
 
 9 Leo V. Leyser, 36 Misc. 549, 73 N. 
 Y. S. 941. 
 
 10 Cranmer v. Building & Loan 
 Ass'n, 6 S. D. 341, 61 N. W. 35. 
 
 11 Arizona. — Greene v. Hereford, 12 
 Ariz. 85, 95 Pac. 105. 
 
 California. — Miner D. Rickey, 5 Cal. 
 App. 451, 90 Pac. 718. 
 
 Florida. — Young v. Whitney, 18 
 Fla. 54. 
 
 Maryland.— Bieviater v. Frazier, 32 
 Md. 302. 
 
 Massachusetts. — Keith v. Marcus, 
 181 Mass. 377, 63 N. E. 924. 
 
 Michigan. — Babbitt v. Bumpus, 73 
 Mich. 331, 41 N. W. 417, 16 Am. St. 
 Rep. 585. 
 
 Mississippi. — Whitehead v. Ducker, 
 11 Smedes & M. 98. 
 
 New York. — Clussman v. Merkel, 3 
 Bosw. 402; Gleason v. Clark, 9 Cow. 
 57 ; Bowman v. Tallman, 2 Robt. 385 ; 
 Cohn V. Heusner, 9 Misc. 482, 30 N. Y. 
 S. 244 ; Smith v. Hoctor, 51 Misc. 649,. 
 99 N. Y. S. 843. 
 
 Washington. — Conover v. Carpenter,. 
 57 Wash. 146, 106 Pac. 620. 
 
§ 554] ACTIONS TO EECOVEB COMPENSATION. 947 
 
 Heretofore, consideration has been given to the liability 
 of an attorney for negligence generally/* and the enforcement 
 of such liability." 
 
 § 554. When Negligence or Ignorance Unavailable as De- 
 fense. — But the mere failure of the attorney to succeed, in the 
 matter undertaken by him, is not evidence of negligence ; and, con- 
 sequently, such failure is no defense to an action brought by him 
 for the recovery of his compensation,** excepting, of course, where 
 compensation is made contingent on success.*' He is neither a 
 gTiarantor nor an insurer,*^ and is only responsible for his failure 
 to exercise that degree of care, skill, and diligence, that is to be ex- 
 pected from those who hold themselves out to the public as attor- 
 neys at law." So, an attorney may explain his reason for delay- 
 ing the prosecution of his client's' cause,*' consistently with his 
 right to recover compensation for the services which he has ren- 
 dered therein ; ** for instance, the attorney may recover where it is 
 shown that the delay resulted, not from carelessness, but from a 
 conviction that it would bring about a satisfactory compromise; 
 and, a fortiori, would this be true where such a compromise was, 
 
 12 See supra, §§ 312-330. Lquisiana. — Succession of Herwig, 
 
 13 See supra, §§ 331-364. 127 La. 127, 53 So. 466. 
 
 14 California. — Foltz v. Cogswell, 86 Michigan. — Babbit v. Bumpus, 73 
 Cal. ,542, 25 Pac. 60. Midi. 331, 41 N. W. 417, 16 Am. St. 
 
 Illinois. — Singer v. Steele, 24 111. Eep. 585. 
 
 App. 58. New Yor7c.^Bowman v. Tallman, 27 
 
 Indiana. — French v. Cunningham, How. Pr. 212; Porter v. Euckman, 38 
 
 149 Ind. 632, 49 N. E. 797. N. Y. 210; Harriman v. Baird, 6 App. 
 
 7oM?a.— Cullison v. Lindsay, 108 la. Div. 518, 39 N. Y. S. 592, affirmed 158 
 
 124, 78 N. W. 847. N. Y. 691, 53 N. E. 1126. 
 
 Miehigan.-^'BTa.ckett v. Sears, 15 Pennsylvania. — In re Worrall, 1 
 
 Mich. 244. Del. Co. Rep. 377. 
 
 New York. — Seymour v. Cagger, 13 Tennessee. — Fulton v. Davidson, 3 
 
 Hun 29; Deering v. McCahill, 51 Heisk. 614. 
 
 Super. Ct. 263. Washington. — Isham v. Parker, 3 
 
 J.— Bills V. Polk, 4 Lea Wash. 755, 29 Pac. 835. 
 
 494. "Seesupra, § 312. 
 
 Wisconsin. — Murphey v. Shepard- l' Union Mut. Life Ins. Co. v. Bu- 
 
 son, 60 Wis. 412, 19 N. W. 356. chanan, 100 Ind. 63. 
 
 15 See supra, § 423. 19 Union Mut. Life Ins. Co. v. Bu- 
 
 16 See supra, § 313. chanan, 100 Ind. 63. 
 
948 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 555 
 
 in fact, effected.^" Nor will delay on the part of the original 
 counsel affect the right of assistant counsel, who was ready and 
 willing to perform the services for which he was engaged, to re- 
 cover his compensation.' So, an attorney will not be precluded 
 from recovering compensation merely because he did not partici- 
 pate in certain proceedings, which affected his client's interests, 
 unless he was employed to appear therein,^ or where the client 
 was not injured because of his attorney's nonappearance,* or other 
 neglect ; * and much less will the attorney's right to compensation 
 be affected where his negligence has been waived by his client,' 
 or where the client has, in fact, benefited by the attorney's 
 services.* 
 
 § 555. Fraud or Bad Faith. — It is well settled that fraud or 
 bad faith on the part of the attorney in the transaction of his cli- 
 ent's business may be set up as a defense to an action for compen- 
 sation, brought by the attorney, for the services in connection 
 with which the fraud or bad faith was displayed.'' Thus, the at- 
 
 80 Hennen v. Bourgeat, 12 Rob. 
 (La.) 522. 
 
 1 Carter v. Baldwin, 95 Cal. 475, 30 
 Pac. 595. 
 
 2 Pearson v. Darrington, 32 Ala. 
 227. 
 
 3 Douglass V. Eason, 36 Ala. 687. 
 
 * Clusaman v. Merkel, 3 Bosw. 
 (N. Y.) 402; Mason v. Ring, 2 Abb. 
 Pr. N. S. (N. Y.) 322. 
 
 5 Ballard v. Carr, 48 Cal. 74. 
 
 6 Murphey v. Shepardson, 60 Wis. 
 412, 19 N. W. 356. 
 
 T Arkansas. — Sparks v. Forrest, 85 
 Ark. 425, 108 S. W. 835. 
 
 Connecticut. — Brackett v. Norton, 4 
 Conn. 517, 10 Am. Dec. 179. 
 
 Georgia. — Bailey v. Devine, 123 Ga. 
 653, 51 S. E. 603, 107 Am. St. Rep. 
 153. 
 
 Indiana. — U. S. Mortgage Co. v. 
 Henderson, lli Ind. 24, 12 N. E. 88. 
 
 Iowa. — Donaldson v. Eaton, 136 la. 
 
 650, 114 N. W. 19, 125 Am. St. Rep. 
 275, 14 L.R.A.(N.S.) 1168. 
 
 Kentucky. — Mealer v. Gibert, 60 S. 
 W. 8, 22 Ky. L. Rep. 1223 ; Brodie i'. 
 Parsons, 64 S. W. 426, 23 Ky. L. Rep. 
 831; Buckler v. Robinson, 96 S. W. 
 1110. 
 
 Minnesota. — Davis v. Swedish- 
 American Nat. Bank, 78 Minn. 408, 80 
 N. W. 953, 81 N. W. 210, 79 Am. St. 
 Rep. 400. 
 
 Nebraska. — Olson v. Lamb, 56 Neb. 
 104, 76 N. W. 433, 71 Am. St. Rep. 
 670. 
 
 New York. — Murphy v. Banderet, 
 13 Daly 385; Chatfield v. Simonson, 
 92 N. Y. 209; Andrews v. Tyng, 94 
 N. Y. 16; Martin v. Piatt, 5 N. Y. St. 
 Rep. 284. See also Pallace i'. Niagara, 
 L. & O. Power Co., 131 App. Div. 453, 
 115 N. Y. S. 340. 
 
 Pennsylvania. — Norris v. Break- 
 water Co., 235 Pa. St. 358, 84 Atl. 358. 
 
§ 555] 
 
 ACTIONS TO EBCOVEE COMPENSATIOIT. 
 
 949 
 
 torney's right to compensation will be affected where it appears 
 that he assumed an adverse or hostile attitude toward his client, 
 or where, without the consent of his client, he represents third 
 persons whose interests are adverse to those of his client.' So, 
 fraud or bad faith on the part of the attorney may be predicated 
 on his failure to inform his client of material facts, and their ef- 
 fect upon the client's business, which were known to the attorney, 
 and were not known to the client ; ' or on the fact that the attor- 
 ney secured a personal advantage from the transaction of his 
 client's business,'" as, for instance, by the acquisition of an inter- 
 est, adverse to that of his client, in the subject-matter of the liti- 
 gation/* The defense under consideration is an affirmative one, 
 and it must — at least prima facie — be established by the defend- 
 ant ; '^ but when established, the burden of proving good faith, and 
 an absence of fraud, rests with the attorney/^ Dealings between 
 attorney and client, the acquisition of adverse interests, and the 
 
 8 United States. — See Baxter v. 
 Lowe, 93 Fed. 358, 35 C. C. A. 344. 
 
 California. — De Cells v. Brunson, 
 53 Cal. 372. 
 
 Connecticut. — Brackett v. Norton, 
 
 4 Conn. 517, 10 Am. Dee. 179. 
 Illinois. — Strong v. International 
 
 B. L. & I. Union, 82 111. App. 426, 
 affirmed 183 111. 97, 55 N. E. 675, 47 
 L.R.A. 792. 
 
 Iowa. — BuUis v. Easton, 96 la. 513, 
 65 N. W. 395. 
 
 Kansas. — McArthur v. Fry, 10 Kan. 
 233. 
 
 Kentucky. — Schamberg v. Auxier, 
 101 Ky. 292, 40 S. W. 911, 19 Ky. L. 
 Eep. 548. 
 
 Missouri. — MaeDonald v. Wagner, 
 
 5 Mo. App. 56. 
 
 New York. — Chatfield v. Simonaon, 
 92 N. Y. 209, affirming 10 Daly 295; 
 Quinn v. Van Pelt, 36 Super. Ct. 279. 
 
 Tennessee. — Cantrell V. Chism, 5 
 Snecd 116. 
 
 Rhode Island. — Orr v. Tanner, 12 
 K. I. 94. 
 
 9 Henry v. Vance, 111 Ky. 72, 63 S. 
 W. 273, 23 Ky. L. Rep. 491; Palms v. 
 Howard, 129 Ky. 668, 112 S. W. 1110. 
 And see also supra, § 155. 
 
 10 Donaldson v. Eaton, 136 la. 650, 
 114 N. W. 19, 125 Am. St. Eep. 275, 
 14 L.R.A.(N.S.) 1168. 
 
 11 Larey v. Baker, 86 Ga. 468, 12 S. 
 E. 684; Olson v. Lamb, 56 Neb. 104, 76 
 N. W. 433, 71 Am. St. Rep. 670. 
 
 See also supra, §§ 395-397, as to 
 tlie purchase of litigious rights as 
 ehampertous. 
 
 12 Davis V. Farwell, 80 Vt. 160, 67 
 Atl. 129; Squier v. Barnes, 193 Mass. 
 21, 78 N. E. 731 ; Kellogg v. Budlong, 
 7 How. (Miss.) 340; Sackett c. Breen, 
 50 Hun 602 mem., 3 N. Y. S. 473; 
 Deering v. Schreyer, 27 Misc. 237, 58 
 N. Y. S. 485, affirmed 40 App. Div. 
 633, 58 N. Y. S. 1139. 
 
 13 See supra, §§ 152, 156, 164, 174. 
 
950 ACTIONS TO EECOVEE COMPENSATION. [§ 551) 
 
 representation of conflicting interests, have been generally consid- 
 ered heretofore.''* 
 
 § 556. When Fraud or Bad Faith Unavailable as Defense. 
 
 — But an attorney's right to compensation is in no way aifected 
 by the mere fact that he represents third persons whose interests 
 are not identical with those of his client, providing, of course, that 
 the representation of such interests is not inconsistent with the 
 faithful discharge of his duties, as an attorney at law, to both par- 
 ties.'* Nor can the client complain of fraud or bad faith on the 
 part of his attorney where, with full knowledge of the facts, he 
 allows the attorney to act for him without objection, and accepts 
 the benefits of the services rendered in his behalf, or otherwise 
 consents to the attorney's alleged misconduct.'® So, an attorney 
 will not be precluded from recovering compensation for services 
 rendered, because of subsequent misconduct which does not affect 
 the value of such services to the client,''' or because of fraud or 
 unfaithfulness in a transaction entirely distinct from that involved 
 in the action for compensation; '' and it has been held that the 
 attorney may recover for such beneficial services as were rendered 
 by him down to the time he began to act fraudulently, or with bad 
 faith, towards his client." Likewise, the mere fact that an attor- 
 ney has, under a prior retainer, advocated views of the law and 
 facts different from those upon which his client rests his case, or 
 has officially, as a judge or officer of the government, held a differ- 
 ent view of the law and the rights of the parties, will not of itself 
 disqualify him from accepting a retainer, and recovering for his 
 
 14 See supra, §§ 152-182. 28 Ky. L. Kcp. 582; Niles v. Muzzy, 
 
 15 Hughes V. Dundee Mort. & Trust 33 Mieh. 61, 20 Am. Rep. 670; Glea- 
 Inv. Co., 21 Fed. 169; Peckham v. son v. Kellogg, 52 Vt. 14. 
 Ramsey, 208 Mass. 112, 94 N. E. 290; 17 Richardson v. Richardson, 100 
 Deering v. Sohreyer, 27 Misc. 237, 58 Mich. 364,. 59 N. W. 178; In re Miller, 
 N. Y. S. 485, affirmed 40 App. Dlv. 22 W. N. C. 11, 5 Pa. Co. Ct. 522; 
 633, 58 N. Y. S. 1139; EUerd v. Ran- Ellerd v. Randolph, (Tex.) 138 S. W. 
 dolph, (Tex.) 138 S. W. 1171. See 1171. 
 
 also supra, § 154. 18 Currie v. Cowles, 6 Bosw. ( N. 
 
 leMealer v. Gilbert, 60 S. W. 8, 22 Y.) 452. 
 Ky. L. Rep. 1523; Brodie v. Parsons, 19 Davis v. Smith, 48 Vt. 52. See 
 
 64 S. W. 426, 23 Ky. L. Rep. 831; also Quinn v. Van Pelt, 36 Super. 
 
 Patterson v. Fleenor, 89 S. W. 705, Ct. (N. Y.) 279. 
 
§ 557] ACTIONS TO EECOVEE COMPENSATION. 951 
 
 services.'" So, an attorney who has been retained to prosecute 
 a criminal action should be guided by his own judgment as to the 
 innocence of the defendant, even though it is contrary to the oath 
 of his client, and may result in the prisoner's discharge ; and, in 
 such case, the fact that the attorney does so act will not disentitle 
 him to compensation.* 
 
 § 557. Refusal to Pay over Money Collected. — It has 
 
 been quite generally held that an attorney will not be entitled to 
 compensation for the collection of money where he refuses to pay 
 it over to his client within a reasonable time,' and this is especi- 
 ally true where the client has been obliged to retain other counsel 
 to recover the sum collected from the original attorney.' It has 
 also been held that an attorney who, after making certain collec- 
 tions under a special contract whereby he was to be allowed a cer- 
 tain share for his services, refuses his client's demand for an ac- 
 counting, cannot claim the beneiit of such contract as to money 
 thereafter collected.* The attorney's refusal to pay over money 
 collected by him for his client warrants the rescission of the con- 
 tract of employment ; ° but should the attorney be discharged with- 
 out cause he will be entitled to reasonable compensation.* Nor 
 will an attorney be deprived of his compensation where he right- 
 fully retains the money collected by him, as, for instance, where 
 he has a lien thereon.'' 
 
 20 Smith V. Chicago & N. W. E. Co., Arlc. 10; Bredin v. Kingland, 4 Watts 
 
 60 la. 515, 15 N. W. 291. (Pa.) 420; Large v. Coyle, (Pa.) 12 
 
 1 Rush r. Cavenaugh, 2 Pa. St. 187. Atl. 343. 
 
 2 Gray v. Conyers, 70 Ga. 349; Pal- 4 McDowell v. Baker, 29 Ind. 481. 
 lace I'. Niagara, L. & 0. Power Co., 6 Manning v. Clark, 40 Fed. 121. 
 131 App. Div. 453, 115 N. Y. S. 340; 6 Scobey r. Ross, 5 Ind. 445; Hern- 
 Walton r. Dickerson, 7 Pa. St. 376; don r. Lammers, (Tex.) 55 S. W. 414. 
 Fisher v. Knox, 13 Pa. St. 622, 53 See also supra, §§ 450, 451. 
 
 Am. Dec. 503; Wills v. Kane, 2 Grant ^ Georgia. — ^Gray v. Conyers, 70 Ga. 
 
 Cas. (Pa.) 60. And see In re Wash- 349. 
 
 ington, 82 Kan. 829, 109 Pac. 700. Massachusetts. — Soper v. Manning, 
 
 As to an attorney's liability in the 147 Mass. 126, 16 N. E. 752. 
 
 collection of claims generally, see Missouri. — Dearing v. Fletclier, 37 
 
 supra, §§ 326-330. Mo. App. 122. 
 
 8 Manning v. Clark, 40 Fed. 121; New York. — Ferndon r. Ferndon, 1 
 
 Trapnall's Adm'x v. Byrd's Adm'r, 22 App. Div. 629 mem., 36 N. Y. S. 741. 
 
952 ACTIONS TO BECOVEE COMPENSATION. [§§ 558, 559 
 
 § 558. Abandonment of Cause by Attorney. — The aban- 
 donmeiit by an attorney of bis client's cause, or otber business en- 
 trusted to his care, terminates the relation of attorney and client,* 
 and if such abandonment be without cause, it will constitute a good 
 defense to an action by the attorney for his compensation.* On 
 the other hand, however, a justifiable abandonment will not pre- 
 clude an attorney from recovering the reasonable value of the serv- 
 ices performed by him down to that time,'" nor will an attorney's 
 right to compensation be affected by the fact that, with his client's 
 consent, he withdrew from a case in which he had rendered bene- 
 ficial services.^* Whether, under the ' evidence, an abandonment 
 was justified, is a question of fact.'^ 
 
 § 559. Gratuitous Service. — It is competent for the defend- 
 ant, in an action for counsel fees, to set up and prove that the 
 services were rendered gratuitously ; ** and in some instances it 
 has been held that the services of an attorney will be deemed to 
 have been gratuitous, in the absence of an agreement to the con- 
 trary ; as, for instance, where the attorney is personally interested 
 
 Pennsylvania. — Large v. Coyle, 12 v. Berger, 93 N. Y. 524, 45 Am. Rep. 
 
 Atl. 343. 263. And see also supra, § 453. 
 
 Rhode Island.— Burns v. Allen, 15 ^^ Coopwood v. Wallace, 12 Ala. 790. 
 
 E. I. 32, 23 Atl. 35, 2 Am. St. Rep. '^ Young v. Lanznar, 133 Mo. App. 
 
 844. 130, 112 S. W. 17 ; Pickard v. Pickard, 
 
 Tennessee.— Foster v. Jackson, 8 ^^ H"" ^^^' ^^ ^- ^- ^- ^^'^■ 
 
 Baxt 433 ^' Kentucky. — Lilly v. Pryse, 54 S. 
 
 Vermont.-Do.vis v. Farwell, 80 Vt. W. 961, 21 Ky. L. Rep. 1223. 
 
 ,„„ „_ ... -.„„ Michigan. — Cicotte v. Corporation 
 
 .'„ „ ..orv of Catholic, etc.. Church, 60 Mich. 
 
 » See supra, 5 139. 
 
 ^ <*. s -^ • 552 27 N. w. 682. 
 
 9 Houghton V. Clarke, 80 Cal. 417, ,^ / -cr , t u 
 „ , , ' Minnesota. — ^Humphreys ;;. Jacoby, 
 
 22 Pac. 288; Holmes .. Evans, 129 N. ,^ ^.^^ ^^ ^ P^ ^^^59. 
 
 Y. 140, 29 N. E. 233. affirming 59 Su- ^^^ yo^.-Brown r. Remington, 
 
 per. Ct. 136, 13 N. Y. S. 614; Buckley gj, jj„„ 214, 35 N. Y. S. 621. 
 
 V. Buckley, 64 Hun 632 mem., 18 N. rc»«essee.— Caldwell i. Shields, 53 
 
 Y. S. 607; Bolte v. Fichtner, 68 Hun §_ ^ iQg^_ 
 
 147, 22 N. Y. S. 725; Cantrell v. yermont.— See Davis t;. Downer, 10 
 
 Chism, 5 Sneed (Tenn.) 116. vt. 529. 
 
 10 Franklin County v. Layman, 43 West Virginia. — Dorr v. Camden, 
 HI. App. 163; Young v. Lanznar, 133 55 W. Va. 226, 46 S. E. 1014, 65 
 Mo. App. 130, 112 S. W. 17; Tenney L.R.A. 348. 
 
§ 559] 
 
 ACTIONS TO EECOVEE COMPENSATIOJiT. 
 
 953 
 
 in the matter undertaken," or, perhaps, where the services were 
 rendered for a brother lawyer.'^ So, an agreement by an attor- 
 ney, in advance of the rendition of legal services, not to charge a 
 fee therefor, is binding on his partner, though the latter was ig- 
 norant of such agreement; '® nor can the effect of such an agree- 
 ment be avoided by a dissolution of the firm.*' The burden of 
 proving gratuitous service rests with the defendant,'' and any evi- 
 dence which tends to prove that fact may be introduced,'* the 
 weight and sufficiency thereof, and the credibility of the witnesses, 
 being questions of fact for the jury.^" Ordinarily, of course, when 
 parties consult an attorney and receive his advice, or the benefit 
 of his services, he is entitled to compensation therefor, and it is 
 
 14 Martin v. Campbell, 11 Rich. Eq. 
 (S. C.) 205. 
 
 15 Where Client Is Another At- 
 torney — Custom as to Gratuitous 
 Services. — In Graydon v. Stokes, 24 
 S. C. 483, the court said: "While 
 there does exist, in certain localities 
 at least, a courtesy among gentlemen 
 of the bar not to charge each other, 
 but, when requested by a brother law- 
 yer, to render him services in the line 
 of their profession without fee or re- 
 ward, yet, where such courtesy exists, 
 it does not touch the legal rights of 
 the parties. The very fact that it is 
 called a 'courtesy' indicates that 
 making no charge is exceptional, and 
 that the general rule is to charge. 
 Besides, even where such courtesy is 
 generally practiced, we liave no doubt 
 that there are certain well-grounded 
 exceptions to the rule; and certainly 
 the moment the parties, from any 
 cause whatever, stand upon their 
 rights, there can be no such thing as 
 courtesy in the case." 
 
 16 Stone V. Hart, 66 S. W. 191, 23 
 Ky. L. Eep. 1777. 
 
 Compare Waples v. Layton, 24 La. 
 Ann. 624, wherein it appeared that an 
 
 attorney employed by the year, at a 
 fixed salary, to attend to the regular 
 business of a bank, agreed with the 
 bank that during his absence a firm of 
 which he was a member would attend 
 to its business free of charge, and it 
 was held that such agreement did not 
 bind the firm. 
 
 "Knight V. Whitmore, 125 Cal. 
 198, 57 Pac. 891. 
 
 18 Woodbury v. Conger, 61 Hun 624 
 mem., 15 N. Y. S. 926; Kelly v. 
 Houghton, 59 Wis. 400, 18 N. W. 326. 
 
 19 Frost V. Lawrence, 138 App. Div. 
 105, 122 N. Y. S. 913; Briggs v. 
 Georgia, 15 Vt. 61. 
 
 Evidence of the customary and. 
 usual charges for services of a similar 
 character, is incompetent to rebut a 
 claim that the services in question 
 were rendered gratuitously. Kelly v. 
 Houghton, 59 Wis. 400, 18 N. W. 326 
 
 ze McFadden v. Ferris, 6 Ind. App, 
 454, 32 N. E. 107; Hatfield r. Cheno 
 with, 24 Ind. App. 343, 56 N". E. 51 
 Lilly I. Pryse, 54 S. W. 961, 21 Ky 
 L. Rep. 1223; Dillon v. McManus, 121 
 Mo. App.' 37, 97 S. W. 971; Frost v. 
 Lawrence, 138 App. Div. 105, 122 N. 
 Y. S. 913. 
 
954 ACTIONS TO EECOVEE COMPENSATION. [§ 560 
 
 immaterial whether they expected to pay him or not.* Nor will 
 an attorney be estopped from demanding compensation because of 
 a statement, made by him under a mistake of fact, that he intend- 
 ed to perform certain services without pay.^ So, a purpose to ren- 
 der gratuitous services will not be inferred from the mere fact 
 that the attorney was a stockholder in a corporation for which the 
 services were performed,' or from the fact that he was a director 
 therein,* or that he was the trustee of a church in whose behalf, 
 at the instance of his cotrustees, he had rendered services.® lior is 
 the fact that legal work was given to an attorney because he "need- 
 ed the practice," inconsistent with an intention to pay therefor.* 
 
 § 560. Payment. — It is also competent to prove, as a defense 
 to an action for counsel fees, that the claim sued upon has been 
 paid,'' or that there has been an accord and satisfaction thereof,' 
 or that its payment has been provided for by a decree of court.® 
 So, the acceptance of a sum of money by an attorney who knew, or 
 had the means of knowing, that it was tendered in full payment 
 for his services, is equivalent to an acceptance of the terms under 
 
 1 Morrison v. Flournoy, 23 La. Ann. Massachusetts. — Blair v. Columbian 
 593; Tiffany v. Morgan, (R. I.) 73 Fireproofing Co., 191 Mass. 333, 77 
 Atl. 465. N. E. 762. 
 
 2 Pickett u. Gore, (Tenn.) 58 S. W. Michigan. — Baldwin v. Clock, 68 
 402. Mich. 201, 35 N. W. 904. 
 
 3 Barker v. Cairo & Fulton R. Co., Mmraesofa.— Olson v. Gjertsen, 42 
 3 Thomp. & C. (N. Y.) 328. ^inn. 407, 44 N. W. 306. 
 
 4 Christie V. Sawyer, 44 N. H. 298. MwomH.— Trimble v. Kansas City, 
 
 6 Cicotte V. Corporation of Catholic, P' ^ ^- ^- ^°- ^^O Mo. 574, 1 Ann. 
 
 etc.. Church, 60 Mich. 552, 27 N. W. ^*^- ^^^' ^^ «• W- 678. 
 
 „„„ New York. — TurnbuU v. Ross, 5 
 
 .' ._ _,. ,,, T , »„ ... Daly 130: Laroe «. Sugar Loaf Dairy 
 
 6 Tiffany .. Morgan, (R. L) 73 Atl. ^^ %^ ^^^ ^.^ J^ ^^ ^_ ^ [ 
 
 ^' 609. 
 
 " United States. — TuU v. Nash, 141 m tt i, m i oo 
 
 ' Tennessee. — Vaughn v. Tealey, 63 
 
 465 
 
 Fed. 557, 73 C. C. A. 29. 
 
 S. W. 236. 
 
 California.— S^Tigg v. Barber, 122 TFiseo»sm.-Smith v. Norton, 114 
 
 Cal. 573, 55 Pac. 419. -yyig. 453^ 99 n. W. 449. 
 
 Georpia.— Bull v. St. Johns, 39 Ga. 8 Carter v. Chicago, B. &, Q. R. Co., 
 
 78. ' 136 Mo. App. 719, 119 S. W. 35. 
 
 Imoa. — Dunham v. Bentley, 103 la. 9 Connor v. Ashley, 41 S. C. 67, 19 
 
 136, 72 N. W. 437. S. E. 201. 
 
§ 560] ACTIONS TO EECOVEE COMPENSATION. 955 
 
 whicli the tender was made, and, under such circumstances, no 
 further sum can be recovered ; ^'' and it has been so held where, un- 
 der an order of court, a certain sum of money was ordered to be 
 paid to an attorney as compensation in full for his services, even 
 though the acceptance of such sum was under protest as to its suffi- 
 ciency.'' But the retention for a few days, of a check given as 
 payment in full, until the attorney could look into the matter, is 
 not sufficient evidence of payment to bar an action for the recovery 
 of a larger sum.'^ So, also, a receipt given by the attorney may be 
 so explained, or rebutted, as to nullify its effect as evidence of 
 payment.'* 
 
 The defense of payment is an affirmative one, and, conse- 
 quently, must be established by the defendant.'* The payment 
 of an attorney for services rendered for a receiver, is no defense 
 to an action for compensation for such services as were rendered in 
 behalf of the company, for whom the receiver was appointed, prior 
 to such appointment ; '* so, a payment made to an attorney by one 
 of several colitigants will be presumed to have been made in settle- 
 ment of his individual liability.' 
 
 16 
 
 10 Walker v. O'Neill Mfg. Co., 128 Maine. — Hooper v. Brundage, 22 
 Ga. 831, 58 S. E. 475; Laroe v. Sugar Me. 460. 
 
 Loaf Dairy Co., 87 App. Div. 585, 84 Michigan. — Baldwin v. Clock, 68 
 
 N. Y. S. 609. Mich. 201, 35 N. W. 904; Hitchcock r. 
 
 11 Dunham v. Bentley, 103 la. 136, Davis, 87 Mich. 629, 49 N. W. 912; 
 72 N. w. 437. Howell v. Smith, 108 Mich. 350, 66 N. 
 
 12 Cain V. Moore, 54 Wash. 627, 103 W. 218. 
 
 Pac. 1130. Jfew Jersey. — ^Koenig v. Harned, 13 
 
 ^^ Indiana. — Kepler v. Jessup, 11 Atl. 236. 
 
 Ind. App. 241, 37 N. E. 655. New York. — In re Borkstrom, 63 
 
 loioa.— Ellis v. Warfield, 82 la. 659, App. Div. 7, 71 N. Y. S. 451, affirmed 
 
 48 K. W. 1058. 168 N. Y. 639, 61 N. E. 1127; Easton 
 
 Massachusetts. — Blair v. Colum- v. Smith, 1 E. D. Smith 318. 
 
 bian Fireproofing Co., 193 Maas. 540, Texas. — Herndon v. Lammers, 55 S. 
 
 79 N. E. 779. W. 414. 
 
 Nebraska. — Cathers v. Linton, 75 Washington. — Steel v. Gordon, 14 
 
 Neb. 420, 106 N. VV. 468. Wash. 521, 45 Pac. 151. 
 
 Texas. — Morris v. Kesterson, 88 S. 15 Trimble v. Kansas City, P. & G. 
 
 W. 277. E. Co., 180 Mo. 574, 1 Ann. Cas. 363, 
 
 14 Indiana.— Fleming v. Flagg, 8 79 S. W. 678. 
 
 Ind. 363. 16 Fleming v. Flagg, 8 Ind. 363. 
 
956 
 
 ACTIONS TO EEOOVEE COMPENSATION. 
 
 [§ 561 
 
 § 561. Payment of Fees to Other Counsel. — The fact that 
 a client has retained several attorneys, or has become responsible 
 for the fees of associate or assistant counsel, is not, as a general 
 rule, an available defense to an action for compensation brought 
 by either of such attorneys, in the absence of an agreement to that 
 effect." And where the original attorney has, himself, employed 
 associate counsel, a release or waiver of the latter's claim, as 
 against the client, is not a prerequisite to a recovery by the origi- 
 nal attorney.^* Nor will an attorney who sues for compensation 
 be limited to the amount paid by him to an assistant attorney for 
 doing the work.^* So, associate or additional counsel, retained by 
 the client, will not be affected by a contract for compensation be- 
 tween the client and the original attorney,^" and this is especially 
 true where the associate counsel was not informed as to such con- 
 tract.^ But where several attorneys are employed for a joint fee, 
 payment thereof to one of them releases the client, who has no in- 
 terest in the matter of division among them and is not bound by 
 their agreements in that regard.* 
 
 17 England. — In re Metropolitan 
 Coal Consumers' Ass'n, 45 Ch. D. 606. 
 
 California. — Luco v. De Toro, 91 
 Gal. 405, 18 Pac. 866, 27 Pac. 1082. 
 
 Florida. — Randall v. Archer, 5 Fla. 
 438. 
 
 Illinois. — Hutchinson v. Dunham, 
 41 111. App. 107. 
 
 Kentucky. — Lipscomb's Adm'r v. 
 Castleman, 147 Ky. 741, 145 S. W. 
 753 ; Townsend V. Ehea, 38 S. W. 865, 
 18 Ky. L. Rep. 901; Nevin v. Masonic 
 Sav. Bank's Assignee, 52 S. W. 811, 
 21 Ky. L. Rep. 596. 
 
 Louisiana. — Morel v. New Orleans, 
 12 La. Ann. 485. 
 
 Minnesota. — Meyer v. Cantieny, 41 
 Minn. 242, 42 N. W. 1060. 
 
 Missouri. — Wright v. Gillespie, 43 
 Mo. App. 244; Kingsbury v. Joseph, 
 94 Mo. App. 298, 68 S. W. 93. 
 
 'NeTyraslca. — Cowles v. Thompson, 31 
 Neb. 479, 48 N. W. 145. 
 
 'New York. — In re Hynes, 105 N. Y. 
 560, 12 N. E. 60; In re Simpson, 53 
 Hun 629 mem., 5 N. Y. S. 863. See 
 also Allison v. Scheeper, 9 Daly 365. 
 
 Texas.— 'B.aXey v. Smith, 73 S. W. 
 54. 
 
 Washington. — Isham v. Parker, 3 
 Wash. 755, 29 Pac. 835. 
 
 18 In re Hynes, 105 N. Y. 560, 12 
 N. E. 60. 
 
 19 Hyde v. Moxie Nerve-Food Co., 
 160 Mass. 559, 36 N. E. 585. 
 
 20 Allen V. Parish, 65 Kan. 496, 70 
 Pac. 351. 
 
 1 Miller v. Ballerino, 135 Cal. 566, 
 67 Pac. 1046, 68 Pac. 600 ; Manning v. 
 Borland, 83 Me. 125, 21 Atl. 837. 
 
 2 Schiefer v. Freygang, 141 App. 
 Div. 236, 125 N. Y. S. 1037. 
 
§ 562] 
 
 ACTIONS TO BECOVEE COMPENSATIOIT. 
 
 957 
 
 § 562. Solicitation of Business. — It would seem that, in 
 some eases at least, it may be shown in defense of an action for 
 compensation, that the case was solicited by the plaintiff.' 
 
 SSee Koehe v. Baldwin, 143 Cal. 
 186, 76 Pac. 956; Ingersoll v. Coal 
 Creek Coal Co., 117 Tenn. 263, 10 
 Ann. Cas. 829, 98 S. W. 178, 119 Am. 
 St. Rep. 1003, 9 L.R.A.(N.S.) 282. 
 
 In a recent ease, dealing with this 
 subject, the court said: "We cannot 
 agree that in these latter years a spirit 
 of commercialism has lowered the 
 standard of the legal profession. We 
 cannot agree that the practice of law 
 has become a 'business,' instead of a 
 'profession,' and that it is now al- 
 lowable to resort to the practices and 
 devices of business men to bring in 
 business by personal solicitation, un- 
 der the facts shown in this case. As 
 to how far an attorney may go in 
 soliciting business, or whether he may 
 solicit at all, we are not called upon 
 to decide;, but when such a case is 
 presented, as is disclosed in this 
 record, of attorneys rushing to the 
 scene of disaster in hot haste, and 
 competing with each other in solicit- 
 ing the bereaved ones to allow them 
 to sue for their losses, we feel that 
 we are called upon to say in no un- 
 certain terms that such conduct is an 
 act of impropriety and inconsistent 
 with the character of the profession. 
 We cannot, we dare not, lower the 
 standard of the legal profession to 
 that of a mere business, in which fleet- 
 ness of foot, or the celerity of the 
 automobile, determines who shall be 
 employed. The miserable victims of 
 the disaster are dazed by the terrible 
 bereavement. They are in no condi- 
 tion to consider their rights to dam- 
 ages. In their extremity, they fly to 
 
 any one promising relief, when, if left 
 to time and more mature considera- 
 tion, they would be enabled to make, 
 perhaps, a better choice. In addition, 
 it is unbecoming a member of the pro- 
 fession, and a public scandal, and 
 when he bases his right to recover 
 fees upon such improper conduct, and 
 lowering the character of the profes- 
 sion and the court, it is no excuse that 
 other attorneys do the same; but this 
 is rather a. reason why this court 
 should act promptly and decidedly, in 
 order that an end may be put to the 
 practice. It is no excuse that cor- 
 porations which have caused such dis- 
 asters have been alert to send their 
 agents and representatives to the 
 scene, with a view of forestalling suits 
 and making favorable compromises. 
 This court has never failed to con- 
 demn this practice in tlie strongest 
 terms ; and, whenever a case has come 
 before it which in any way smacked of 
 fraud or undue advantage arising out 
 of such conduct, this court has not 
 been slow to disregard or set aside 
 improper or hard settlements. But 
 such agents of corporations are not, 
 as a rule, officers of the court, nor do 
 they occupy that high status which 
 the law places the attorney upon ; and 
 we think that we can safely say that 
 if any attorney should make such 
 settlement, under such circumstances, 
 this court would not hesitate to disbar 
 him. It is said that there is no prec- 
 edent for refusing fees because of 
 such conduct. If this be so, we are 
 admonished by the record in this case 
 that it is high time that such a prec- 
 
958 
 
 ACTIONS TO EECOVEE COMPENSATION, 
 
 [§ 563 
 
 § 563. Statute of Limitations Generally. — The statute of 
 limitations may also be set up in bar of a recovery ; * and, as a 
 general rule, will commence to run against the attorney from the 
 time his services are so completed that he might have brought an 
 action for his compensation.* But where several suits arise out 
 of the same subject-matter, so that the entire litigation must be 
 considered as one continuous transaction, and based upon one eon- 
 tract of employment, the statute begins to run only from the ter- 
 
 edent be set, and in such terms as 
 may not be mistaken or misunder- 
 stood." IngersoU v. Coal Creek Coal 
 Co., 117 Tenn. 263, 10 Ann. Cas. 829, 
 98 S. W. 178, 119 Am. St. Rep. 1003, 
 9 L.R.A.(N.S.) 282. 
 
 iDempsey v. Wells, 109 Mo. App. 
 470, 84 S. W. 1015. 
 
 5 England. — Martindale v. Falkner, 
 2 C. B. 706, 52 E. C. L. 706, 3 Dowl. 
 & L. 600, 10 Jur. 161; Harris v. Os- 
 bourn, 2 Cromp. & M. 629, 3 L. J. 
 Exch. 182, 4 Tyrw. 445; Whitehead v. 
 Lord, 7 Exch. 691, 21 L. J. Exch. 239 ; 
 Harris v. Quine, L. E. 4 Q. B. 653; 
 Coburn v. CoUedge, [1897] 1 Q. B. 
 702, 66 L. J. Q. B. 462. See also 
 Kothery v. Mannings, 1 B. & Ad. 15, 
 20 E. C. L. 334, 8 L. J. K. B. 386. 
 Compare Phillips v. Broadley, 11 Jur. 
 264. 
 
 Canada. — Gourley v. McAloney, 29 
 Nova Scotia 319; Millar v. Kanady, 5 
 Ont. L. Kep. 412. See also Halliwell 
 V. Zwick, 13 Ont. W. Rep. 1; Oilman 
 V. Cockshutt, 18 Quebec Super. Ct. 
 552 ; Lizars v. Dawson, 32 U. C. Q. B. 
 237. 
 
 Arkansas. — Phelps v. Patterson, 25 
 Ark. 185 ; McNeil v. Garland, 27 Ark. 
 343; Parker v. Carter, 91 Ark. 162, 
 120 S. W. 836, 134 Am. St. Rep. 60; 
 Boynton v. Brown, 103 Ark. 513, 145 
 S. W. 242. See also Fenno v. English, 
 22 Ark. 170. 
 
 California. — Hancock v. Pico, 47 
 Cal. 161 ; Bartlett v. Odd Fellows' Sav. 
 Bank, 79 Cal. 218, 21 Pac. 743, 12 
 Am. St. Rep. 139 ; Johnson v. Bank of 
 Lake, 125 Cal. 6, 57 Pac. 664, 73 Am. 
 St. Rep. 17; Osborn v. Hopkins, 160 
 Cal. 501, Ann. Cas. 1913A 413, 117 
 Pac. 519. 
 
 Illinois. — Walker v. Goodrich, 16 
 111. 341. See also Meyer v. McCum- 
 ber, 75 111. App. 119. 
 
 Indiana. — Felt v. Mitchell, 44 Ind. 
 App. 96, 88 N. E. 723. 
 
 Kentucky. — Warren Deposit Bank 
 17. Barclay, 60 S. W. 853, 22 Ky. L. 
 Rep. 1555. 
 
 Louisiana. — Looney v. Levy, 35 La. 
 Ann. 1012. 
 
 Massachusetts. — Eliot v. Lawton, 7 
 Allen 274, 83 Am. Dec. 683; Taft v. 
 Shaw, 159 Mass. 592, 35 N. E. 88. 
 
 Michigan. — Walbridge v. Barrett, 
 118 Mich. 433, 76 N. W. 973, 5 Detroit 
 Leg. N. 562. 
 
 Mississippi. — Johnson v. Pyles, 11 
 Smedes & M. 189. 
 
 Missouri. — See Harrison v. Hall, 8 
 Mo. App. 167. 
 
 Nebraska. — See Greek v. McDaniel, 
 68 Neb. 569, 94 N. W. 518. 
 
 New Jersey. — See Holloway v. Ap- 
 pelget, 55 N. J. Eq. 583, 40 Atl. 27, 
 62 Am. St. Rep. 827. 
 
 New York. — Bruyn v. Comstock, 58 
 Barb. 9; Mygatt v. Wilcox, 45 N. Y. 
 
§ 564] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 959 
 
 mination of the last suit.* Where an attorney is employed to con- 
 duct litigation, his employment will be deemed to continue until 
 final judgment has been entered/ unless the relationship of attor- 
 ney and client has been sooner terminated.* So, where the attor- 
 ney's compensation is dependent on a contingency, the running of 
 the statute must date from the happening thereof.' 
 
 § 564. Where Professional Relationship Has Been Pre- 
 maturely Terminated. — In some instances the relationship of 
 attorney and client terminates before the completion of the busi- 
 ness undertaken by the attorney,^" and when so terminated the 
 attorney's right of action for compensation, if he has any,'^ ac- 
 crues.'* But where the premature termination of the relation 
 
 306, 6 Am. Rep. 90, affirming 1 Lans. 
 55; Bathgate v. Haskin, 59 H. Y. 
 533 ; Gustine u. Stoddard, 23 Hun 99 ; 
 Reavey v. Clark, 56 Hun 641 mem., 18 
 Civ. Proe. 272, 9 N. Y. S. 216; Wells 
 V. Salina, 71 Hun 559, 25 N. Y. S. 
 134; Dailey v. Devlin, 21 App. Div. 
 62, 47 N. Y. S. 296; Matter of Stevf- 
 art, 21 Misc. 412, 47 N. Y. S. 1065; 
 Clarkson v. Young, 11 N. Y. S. 562; 
 McCrea v. Seofleld, 86 N. Y. S. 10. 
 
 Pennsylvania. — Foster v. Jack, 4 
 Watts 334; Hale v. Ard, 48 Pa. St. 
 22; Lichty v. Hugus, 55 Pa. St. 434; 
 Mosgrove v. Golden, 101 Pa. St. 605; 
 Campbell v. Maple, 105 Pa. St. 304; 
 Mattern v. McDivitt, 113 Pa. St. 402, 
 6 Atl. 83; Tarr'B Estate, 21 Pa. Co. 
 Ct. 358. 
 
 Texas.— Gulf, C. & S. F. R. Co. v. 
 Hutcheson, 3 Willson Civ. Cas. Ct. 
 App. § 96; Jones v. Lewis, 11 Tex. 
 359; Montgomery v. Brown, 31 S. W. 
 1084; Leake v. Cleburne, 36 S. W. 97. 
 
 Vermont. — Langdon v. Castleton, 30 
 Vt. 285; Adams v. Mott, 44 Vt. 259; 
 Davis V. Smith,. 48 Vt. 52: Noble v. 
 Bellows, 53 Vt. 527. 
 
 6 Meyer v. McCumber, 75 111. App. 
 119. 
 
 7 Arkansas. — Fenno v. English, 22 
 Ark. 170. 
 
 Illinois. — Walker v. Goodrich, 16 
 HI. 341. 
 
 Massachusetts. — Eliot v. Lawton, 7 
 Allen 274, 83 Am. Dee. 683. 
 
 Mississippi. — Johnson v. Pyles, 11 
 Smedes & M. 189. See also Boylan v. 
 Holt, 45 Miss. 277. 
 
 New York. — Bruyn v. Comstock, 56 
 Barb. 9; Gustine v. Soddard, 23 Hun 
 99; Clarkson v. Young, 11 N. Y. S. 
 562. 
 
 8 Eliot V. Lawton, 7 Allen (Mass.) 
 274, 83 Am. Dec. 683 ; Foster v. Jack, 
 4 Watts (Pa.) 334; Lichty v. Hugus, 
 55 Pa. St. 434. And see the following 
 section. 
 
 SBartlett v. Odd Fellows' Sav. 
 Bank, 79 Cal. 218, 21 Pac. 743, 12 
 Am. St. Rep. 139; Morgan v. Brown, 
 12 La. Ann. 159. 
 
 "See supra, §§ 137-141. 
 
 11 See supra, §§ 450-460, as to the 
 recovery of compensation on the pre- 
 mature termination of an attorney's 
 employment. ■ 
 
 12 Weil V. Finneran, 70 Ark. 509, 69 
 S. W. 310; Watson v. Columbia Min. 
 Co., 118 Ga. 603, 45 S. E. 460; Belden 
 
960 
 
 ACTIONS TO RECOVEE COMPENSATIOIT. 
 
 [§ 565 
 
 of attorney and client results because of a settlement by tbe 
 client/' the statute will not begin to run against the attorney until 
 he learns, or has reason to know, of such settlement.^* 
 
 Submitting Case to Jury — Recovery — Review. 
 
 § 565. Submitting Case to Jury. — At the conclusion of the 
 trial the case should be submitted to the jury with proper instruc- 
 tions based upon the law and the evidence as applied to the issues 
 involved.'^ Thus, where there is a conflict of evidence, the jury 
 should be properly instructed as to questions of employment,^* 
 
 V. Butchers' Union Slaughterhouse 
 Co., 38 La. Ann. 392 ; Campbell v. Ma- 
 ple's Adm'r, 105 Pa. St. 304. 
 
 13 See supra, §§ 456-460. 
 
 1* Holloway v. Appelget, 55 N. J. 
 Eq. 583, 40 Atl. 27, 62 Am. St. Rep. 
 827 ; Lichty v. Hugus, 55 Pa. St. 434 ; 
 Henrietta Nat. Bank v. Barrett, 
 (Tex.) 25 S. W. 456. 
 
 IB United States. — Sanders v. 
 Graves, 105 Fed. 849, affirmed 125 
 Fed. 690, 60 C. C. A. 422. 
 
 Alabama. — Moore v. Watts, 81 Ala. 
 261, 2 So. 278. 
 
 California. — Ellis v. Woodburn, 24 
 Pac. 893. 
 
 Illinois. — Bennett v. Connelly, 103 
 111. 50; Gorrell v. Payson, 170 111. 
 213, 48 N. E. 433, reversing 68 111. 
 App. 641; Goodman v. Lee, 40 111. 
 App. 229. 
 
 Indiana. — Hauss v. Niblack, 80 Ind. 
 407; Union Mut. Life Ins. Co. v. 
 Buchanan, 100 Ind. 63. 
 
 Maine. — Matthews v. Williams Mfg. 
 Co., 98 Me. 234, 56 AtL 759. 
 
 Massachusetts. — Cooke v. Plaisted, 
 176 Mass. 374, 57 N. E. 687. 
 
 Missouri. — Rose v. Spies, 44 Mo. 
 20; Thrasher f. Greene County, 105 
 Mo. 244, 16 S. W. 955; Bearing v. 
 Fletcher, 37 Mo. App. 122. 
 
 Ohio. — Scheinesohn v. Lemonek, 84 
 Ohio St. 424, Ann. Cas. 1912C 737, 95 
 N. E. 913. 
 
 Oregon. — MacMahon v. Duffy, 36 
 Ore. 150, 59 Pac. 184. 
 
 South Dakota. — Cranmer v. Broth- 
 ers, 15 S. D. 234, 88 N. W. 105. 
 
 Texas. — Herndon v. Lammers, 55 S. 
 W. 414. 
 
 Wtscomsim.— -Gough v. Root, 73 Wis. 
 32, 40 N. W. 647, 41 N. W. 622. 
 
 16 United States. — Northern Pac. R. 
 Co. V. Clarke, 106 Fed. 794, 45 C. C. 
 A. 635. 
 
 Alabama. — Irvin v. Strother, 163 
 Ala. 484, 50 So. 969. 
 
 California. — Miner v. Rickey, 5 Cal. 
 App. 451, 90 Pac. 718. 
 
 Connecticut. — Graves v. Lockwood, 
 30 Conn. 276. 
 
 Indiana. — -Hauss v. Niblack, 80 Ind. 
 407. 
 
 Iowa. — Cullison v. Lindsay, 108 la. 
 124, 78 N. W. 847. 
 
 Missouri. — Warder v. Seitz, 157 
 Mo. 140, 57 S. W. 537; Stewart v. 
 Emerson, 70 Mo. App. 482; Dempsey 
 V. Wells, 109 Mo. App. 470, 84 S. W. 
 1015; Clay v. Brown, 148 Mo. App. 
 541, 128 S. W. 803. 
 
 New York. — Richards v. Washburn, 
 14 App. Div. 237, 43 N. Y. S. 615. 
 
§ 566] 
 
 ACTIONS TO EECOVEE COMPENSATIOIf. 
 
 961 
 
 fairness,"' performance,^' the acceptance of beneficial services,^' 
 the value of the services rendered,^" and the sufiiciency of the 
 defense presented.' In all such matters the weight of the evi- 
 dence and the credibility of the witnesses are questions of fact 
 and, therefore, within the exclusive province of the jury.^ The 
 verdict, as to matters of form, must comply with the local 
 practice.' 
 
 § 566. Recovery Generally. — As a general rule, the plaintiff 
 will be entitled to recover the amount of compensation stipulated 
 
 Vermont. — Briggs v. Georgia, 10 
 Vt. 68. 
 
 As to evidence of employment, see 
 supra, §§ 507-522. 
 
 " Muller V. Kelly, 125 Fed. 212, 60 
 C. C. A. 170, reversing 116 Fed. 545. 
 
 As to fairness generally, see supra, 
 §§ 428-432. 
 
 Compare Werner v. Knowlton, 107 
 App. Div. 158, 94 N. Y. S. 1054, where- 
 in it was said that under the express 
 provision of the New York code to 
 the effect that the compensation of an 
 attorney is governed by agreement, 
 express or implied, which is not re- 
 strained by law, an attorney express- 
 ly fixing the rate of compensation 
 with a client is not compelled, in the 
 absence of evidence of fraud or over- 
 reaching, to submit the validity of the 
 agreement to a jury. 
 
 IS Davis V. Jackson, 86 Ga. 138, 12 
 S. E. 299; Lockwood v. Brush, 6 
 Dana (Ky.) 433; Peacock v. Ratliff, 
 62 Wash. 653, 114 Pac. 507. 
 
 As to evidence of performance, see 
 supra, §§ 523-528. 
 
 WHauss V. Niblack, 80 Ind. 407; 
 
 Hudspeth v. Yetzer, 78 la. 11, 42 N. 
 
 W. 529; Perry v. Bailey, 12 Kan. 539. 
 
 As to what constitutes an aocept- 
 
 Attys. at L. Vol. II.— 61. 
 
 ance of beneficial services, see supra, 
 §§ 518, 519. 
 
 20 See the following section, and 
 see also supra, §§ 529-544, 550. 
 
 1 Lindsay v. Carpenter, 90 la. 529, 
 58 N. W. 900; CuUison v. Lindsay, 
 108 la. 124, 78 N. W. 847; More- 
 head's Trustee v. Anderson, 125 Ky. 
 77, 100 S. W. 340, 30 Ky. L. Rep. 
 1137. 
 
 As to defenses generally, see supra, 
 §§ 551-564. 
 
 2 United States. — Gilmore v. Mo- 
 Bride, 156 Fed. 464, 84 C. C. A. 274. 
 
 California. — Buck v. Eureka, 124 
 Cal. 61, 56 Pac. 612. 
 
 District of Columbia. — ^Blanken- 
 ship V. Cowling, 31 App. Cas. 626. 
 
 Florida. — Broward v. Doggett, 2 
 Fla. 49. 
 
 Illinois. — ^Artz v. Robertson, 50 111. 
 App. 27; Sexton V. Bradley, 110 111. 
 App. 495. 
 
 Indiana. — Blizzard v. Applegate, 77 
 Ind. 516. 
 
 MaAne. — Matthews v. Williams Mfg. 
 Co., 98 Me. 234, 56 Atl. 759. 
 
 Missouri. — Ottofy v. Winsor, 137 
 Mo. App. 272, 119 S. W. 40. See 
 also supra, § 506. 
 
 8 Shuck t;. Pfenninghausen, 101 Mo. 
 App. 697, 74 S. W. 381. 
 
962 
 
 ACTIONS TO BECOVEE COMPENSATION. 
 
 L§ 567 
 
 for in an express contract between himself and his client, provid- 
 ing that such amount has not been reduced by set-off or counter- 
 claim.* Where, however, the amount of compensation has not 
 been fixed by the parties, the value of attorney's services usually 
 presents a question of fact for the jury,' and this is true even 
 though expert testimony has been introduced for the purpose of 
 establishing this fact,* although, in some cases, it has been held 
 that the uncontradicted testimony of expert witnesses as to the 
 value of an attorney's services, is binding on the jury.'' 
 
 § 567. Recovery of Interest. — An attorney ordinarily will 
 be entitled to recover interest on the amount due for pro- 
 fessional services after a demand therefor has been made on the 
 
 4 Myers v. Bender, 46 Mont. 497, 
 129 Pao. 330; Allen v. Flynn, 52 
 Misc. 121, 101 N. Y. S. 747; Taggart 
 V. Hower, (Pa.) 17 Atl. 13; Clarke v. 
 Paver, (Tex.) 40 S. W. 1009. 
 
 6 Arizona. — De Mund Lumber Co. v. 
 Stilwell, 8 Ariz. 1, 68 Pac. 543. 
 
 Arlcansas. — Weil v. Fineran, 78 
 Ark. 87, 93 S. W. 568. 
 
 Colorado. — Leitensdorfer v. King, 7 
 Colo. 436, 4 Pac. 37. 
 
 Iowa. — Graham v. Dillon, 144 la. 
 82, 121 N. W. 47. 
 
 Kentucky. — Morehead's Trustee v. 
 Anderson, 125 Ky. 77, 100 S. W. 340, 
 30 Ky. L. Rep. 1137; Asher v. Met- 
 calf, 152 Ky. 632, 153 S. W. 987. 
 
 Massachusetts. — Cooke v. Plaisted, 
 176 Mass. 374, 57 N. E. 687; Childs v. 
 Littlefield, 206 Mass. 113, 91 N. E. 
 1017. 
 
 Michigan. — Baldwin v. Clock, 68 
 Mich. 201, 35 N. W. 904. 
 
 Minnesota. — Wilkinson v. Crooks- 
 ton, 75 Minn. 184, 77 N". W. 797; Cal- 
 houn V. Akeley, 82 Minn. 354, 85 N. 
 W. 170. 
 
 Missouri. — Musser v. Adler, 86 Mo. 
 445; Warder v. Seitz, 157 Mo. 140, 57 
 S. W. 537. 
 
 'New York. — Eandall v. Packard, 
 142 N. Y. 47, 36 N. E. 823, affirming 
 1 Misc. 344, 20 N. Y. S. 716; Serat v. 
 Smith, 61 Hun 36, 15 N. Y. S. 330; 
 Steele v. Hammond, 136 App. Div. 
 667, 121 N. Y. S. 589. 
 
 Pennsylvania. — In re Porter Tp. 
 Road, 1 Walk. 10; Playford v. Hutch- 
 inson, 135 Pa. St. 426, 19 Atl. 1019. 
 
 South Carolina. — Graydon v. Stokes, 
 24 S. C. 483. 
 
 Texas. — International & 6. N. E. 
 Co. V. Clark, 81 Tex. 48, 16 S. W. 
 631; Britt v. Burghart, 16 Tex. Civ. 
 App. 78, 41 S. W. 389; Eailey v. 
 Davis, 128 S. W. 434. 
 
 Vermont. — Strong v. McConnel, 5 
 Vt. 338. 
 
 Wisconsin. — Cunning v. Kemp, 22 
 Wis. 509. 
 
 6 See supra, § 550. 
 
 ' See supra, § 550 note. 
 
§ 567] 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 963 
 
 client,' but not before.^ The commencement of a suit for the 
 recovery of compensation is, in itself, a sufficient demand."" But 
 a demand for payment would seem to be unnecessary where an 
 attorney has been discharged,'^ or where the client compromises 
 the claim without the knowledge or consent of the attorney.'^ 
 So, interest will be allowed on an award,'' or a judgment, for 
 counsel fees.'* It has been held, however, that interest may be 
 recovered from the time a claim for services becomes due,'' and, 
 as to disbursements, from the time they are made.'* Where an 
 attorney's lien on a judgment is in the form of an open account 
 till allowed, the allowance or nonallowance of interest is discre- 
 tionary with the court.''' Under an Illinois statute, an attorney is 
 not entitled to interest unless payment has been withheld "by an 
 unreasonable and vexatious delay of payment," and whether this 
 exists is a question of fact for the jury." 
 
 8 Colorado. — Mulligan v. Smith, 32 
 Colo. 404, 76 Pac. 1063; practically 
 overruling Colorado Coal & Iron Go. 
 t'. John, 5 Colo. App. 213, 38 Pac. 399. 
 
 Missouri. — Trimble v. Kansas City, 
 P. & G. R. Co., 180 Mo. 574, 1 Ann. 
 Gas. 363, 79 S. W. 678. 
 
 New York. — Mygatt v. Wilcox, 45 
 N. Y. 306, 6 Am. Kep. 90; Gallup v. 
 Perue, 10 Hun 525; Hadley v. Ayres, 
 12 Abb. Pr. N. S. 240; Rexford v. 
 Corastock, 3 N. Y. S. 876. 
 
 Wisconsin.' — Remington v. Eastern 
 R. Co., 109 Wis. 154, 84 N. W. 898, 
 85 N. W. 321. 
 
 9 Gallup 1,. Perue, 10 Hun (N. Y.) 
 525; Hadley v. Ayres, 12 Abb. Pr. N. 
 S. (N. Y.) 240; Mygatt v. Willcox, 1 
 Lans. (N. Y.) 55. 
 
 10 Mulligan v. Smith, 32 Colo. 404, 
 76 Pac. 1063. 
 
 11 Where an attorney has been dis- 
 charged mthout cause, he is entitled 
 to be paid at once for the services 
 rendered down to that time; and, in 
 default of payment, interest accrues 
 from that date as a legal incident. 
 
 Goodin V. Hays, 88 S. W. 1101, 28 Ky. 
 L. Rep. 112; Com. «. Terry, 11 Pa. 
 Super. Ct. 547. 
 
 12 Where a client compromises a 
 suit without the knowledge of his at- 
 torney, interest on the sum due the 
 attorney will be allowed from the 
 date of such compromise. Boyd v. G. 
 W. Chase & Son Mercantile Co., 135 
 Mo. App. 115, 115 S. W. 1052. 
 
 13 Whitney v. New Orleans, 54 Fed. 
 614, 13 U. S. App. 229, 4 C. C. A. 521. 
 
 1* Louisville Gas Co. v. Hargis, 
 (Ky.) 33 S. W. 946. 
 
 15 Adams v. 'Ft. Plain Bank, 36 N. 
 Y. 255. And see Myers v. Bender, 46 
 Mont. 497, 129 Pac. 330. 
 
 16 Rexford v. Comstock, 3 N. Y. S. 
 876. 
 
 l' Where an attorney's lien on a 
 judgment is in the form of an open 
 account till allowed, the allowance or 
 nonallowance of interest is discretion- 
 ary with the court. Gaylord v. Nel- 
 son, 7 Ky. L. Rep. 821. 
 
 18 Levinson v. Sands, 74 111. App. 
 273. 
 
964 
 
 ACTIONS TO EECOVEE COMPENSATION. 
 
 [§ 568 
 
 § 568. Review. — The judgment in an action for compen- 
 sation will iisually be reversed only for manifest error in the 
 admission or exclusion of evidence,^' or in the giving or withhold- 
 ing of instructions,*" or in some other respect,' or where the evi- 
 dence is insujBficient to sustain the verdict.* The judgment will 
 not be reversed for harmless error ; ^ and, in most jurisdictions, 
 an excessive verdict may be reduced in the appellate court.* So, 
 
 19 Miner v. Rickey, 5 Cal. App. 451, 
 90 Pac. 718; Gilbert v. Fay, 4 App. 
 Cas. (D. C.) 38; Dodds v. Gregson, 
 35 Wash. 402, 77 Pac. 791. 
 
 20 Georgia. — Wells v. Haynes, 101 
 Ga. 841, 28 S. E. 968. 
 
 Missouri. — Warder v. Seitz, 157 Mo. 
 140, 57 S. W. 537; Bearing v. Fletch- 
 er, 37 Mo. App. 122; Stewart v. Em- 
 erson, 70 Mo. App. 482. 
 
 South Dakota. — Cranmer v. Broth- 
 era, 15 S. D. 234, 88 N. W. 105. 
 
 Texas. — Herndon v. Lammers, 55 S. 
 W. 414. And see also supra, § 565. 
 
 1 United States. — Whitney v. New 
 Orleans, 54 Fed. 614, 13 U. S. App. 
 229, 4 C. C. A. 521; Farmers' Loan & 
 Trust Co. V. McClure, 78 Fed. 209, 49 
 U. S. App. 43, 24 C. C. A. 64; Barcus 
 V. Sherwood, 136 Fed. 184, 69 C. C. 
 A. 200, affirming 130 Fed. 364. 
 
 Arkansas. — Wilson v. Fowler, 3 
 Ark. 463. 
 
 California. — Roche v. Baldwin, 143 
 Cal. 186, 76 Pac. 956. 
 
 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. Rep. 
 567., 
 
 Illinois. — Story v. Hull, 41 111. App. 
 109. 
 
 Kansas. — St. Louis & S. F. R. Co. 
 V. Dudgeon, 28 Kan. 283. 
 
 Kentucky. — Louisville Gas Co. v. 
 Hargis, 33 S. W. 946; Warren De- 
 posit Bank v. Barclay, 60 S. W. 853, 
 22 Ky. L. Rep. 1555. 
 
 Louisiana. — Phillips v. Stewart, 24 
 La. Ann. 152; Lartigue v. White, 25 
 La. Ann. 291 ; Dinkelspiel v. Pons, 119 
 La. 236, 43 So. 1018. 
 
 Missouri. — Bogliolo v. Scott, 5 Mo. 
 341. 
 
 • Nebraska. — Dillon v. Watson, 3 
 Neb. (unofficial) Rep. 530, 92 N. W. 
 156. 
 
 New York. — Nash v. Kneeland, 41 
 Hun 646 mem., 4 N. Y. St. Rep. 135; 
 Sackett v. Breen, 50 Hun 602 mem., 3 
 N. Y. S. 473; Blake v. Andrews, 56 
 Hun 641 mem., 9 N. Y. S. 363; Wood 
 V. Baldwin, 56 Hun 647 mem., 10 N. Y. 
 S. 195; Van Every r. Adams, 42 Su- 
 per. Ct. 126; Leavitt v. Chase, 59 
 Super. Ct. 230, 13 N. Y. S. 883, af- 
 firmed 129 N. Y. 660, 29 N. E. 831. 
 
 Oregon. — Nelson v. Blaisdell, 23 
 Ore. 507, 32 Pac. 391. 
 
 Tessas. — Hamman v. Willis, 62 Tex. 
 507. 
 
 Washington. — Gottstein v, Harring- 
 ton, 25 Wash. 508, 65 Pac. 753; Thorp 
 V. Ramsey, 51 Wash. 530, 99 Pac. 584. 
 
 2 Spicer v. Yopp, 30 Ga. 285; Whal- 
 len V. Hallam, 76 S. W. 860, 25 Ky. 
 L. Rep. 965. 
 
 8 Blizzard v. Applegate, 77 Tnd. 
 516; Morehead v. Anderson, 125 Ky. 
 77, 100 S. W. 340; Smith v. Couch, 
 117 Mo. App. 267, 92 S. W. 1143. 
 
 * Finney v. Pierrepont, 18 App. Div. 
 627, 45 N. Y. S. 977; Scharps v. Hess, 
 120 N. Y. S. 56; McMillan v. North- 
 
§ 569] ACTIONS TO EECOVEE COMPENSATION. 965 
 
 the cause may be reversed as to particular items, and affirmed as 
 to others.'' But these matters are almost exclusively governed by 
 local practice acts, and rules of court, which must be consulted. 
 
 Recovery Bach from Attorney — Penalties. 
 
 § 569. When Fees May Be Recovered Back. — A client 
 may recover back from his attorney such money as has been paid 
 for the performance of professional services which the attorney 
 refuses or neglects to render.* So, where an attorney has conduct- 
 ed himself so as to warrant the rescission of the contract of em- 
 ployment, his client may so rescind, and recover back all, or a 
 part, of the fees which were paid in pursuance thereof, accord- 
 ing to the circumstances.'' And where complete performance by 
 the attorney is prevented, as, for instance, by his death, the client 
 may recover, from his estate, the unearned portion of the fee.* 
 So, where an attorney was paid for procuring a divorce which 
 was subsequently set aside because of gross irregularities in the 
 proceeding, the client was permitted to recover back the fees paid 
 to the attorney in, ignorance of such irregularities.' The rule 
 that money paid under a mistake of law is not recoverable back, 
 does not apply as between attorney and client, nor as between the 
 attorney and the opposite party, where the amount of compensa- 
 tion for the services rendered is regulated by statute.*" Thus, 
 where an attorney receives money, or any articles of value, by 
 virtue of an order of court made in a cause in which he is coun- 
 sel, and it is decreed, before he turns the same over to his client, 
 that the order was erroneously granted, the court may order the 
 restoration of the money to its former custodian.** So, also, 
 counsel fees paid to one who was disqualified from practicing 
 law, and in ignorance of that fact, may be recovered back from 
 
 port Smelting & Refining Co., 49 8 Callahan v. Shotwell, 60 Mo. 398 ,- 
 
 Wash. 76, 94 Pac. 761. See also In re MeCammon v. Peck, 6 Ohio Cir. Dee. 
 
 Knapp, 8 Abb. N. Cas. (N. Y.) 308. 504, 9 Ohio Cir. Ct. 589. 
 
 5 Williams v. Murrell, 13 S. W. 9 Von Wallhoffen v. ISrewcombe, 10> 
 1075, 12 Ky. L. Rep. 307. Hun (N. Y.) 236. 
 
 6 Benton v. Craig, 2 Mo. 198. lo Moulton v. Bennett, 18 Wend-. 
 
 7 Hilton V. Crooker, 30 Neb. 707, (N. Y.) 586. 
 
 47 N. W. 3. " Pinkard v. Allen, 75 Ala. 73. 
 
966 ACTIONS TO EECOVEE COMPENSATION. [§ 570 
 
 Such person.** Where a client, in pursuance of an unconscionable 
 agreement, transferred a mortgage to the attorney's wife in pay- 
 ment of the exorbitant fee, the fact of the assignment to the wife 
 will not relieve the attorney from the duty to reimburse the 
 client." 
 
 § 570. Recovery Back Denied. — The mere fact that serv- 
 ices for which an attorney has been paid have not been per- 
 formed, is not, in itself, sufficient to warrant the recovery back of 
 the attorney's fee; thus, where a client abandons a cause, for the 
 management of which he has paid counsel in advance, the fees so 
 paid cannot be recovered back, even though the suit was aban- 
 doned because the attorney was doubtful of its successful out- 
 come.** Wor can the client recover back any part of the fee paid 
 to an attorney for conducting litigation, on the ground that only 
 a portion of the services originally contemplated has been per- 
 formed, owing to the settlement of the litigation by the client.** 
 And after a settlement has been had between attorney and client, 
 it is then too late for the client to seek a return of the fees re- 
 tained by the attorney, on the ground that the contract of em- 
 ployment was champertous.*^ So, where an attorney received 
 and credited a certain sum of mon^y for judgment creditors, and, 
 by an understanding with his client, such sum was applied in 
 payment of his fees, the transaction is equivalent to a payment 
 over by the attorney to his client, so that, on the reversal of the 
 judgment, the attorney will not be obliged to refund the payment 
 
 13 Evans v. Funk, 151 111. 650, 38 N. secure the acquittal of the accused at 
 
 E. 230. a specified term of court, or else pay 
 
 As to unauthorized practice gen- back the money and surrender the 
 
 erally, see supra, §§ 69-71. note, and, through no fault of either 
 
 13 Eysaman v. Nelson, 79 Misc. 304, party, the accused failed to appear at 
 
 140 N. Y. S. 183. said term, or at any term afterwards, 
 
 11 Riehl V. Levy, 43 Misc. 59, 86 N. though he had not been tried or re- 
 
 Y. S. 464, 45 Misc. 425, 90 N. Y. S. leased, it was held that the attorney 
 
 441. must pay back the money and sur- 
 
 Compare Moore v. Eobinson, 92 111. render the note. 
 
 491, wherein it appeared that an at- 16 Mahoney v. Bergin, 41 Cal. 423. 
 
 torney, who had been paid a certain 16 Caldwell v. Shepherd, 6 T. B. 
 
 sum and given a note iy the brother Mon. (Ky.) 389. 
 of one indicted for a crime, agreed to 
 
§ 571] ACTIONS TO EECOVEE COMPENSATION. 967 
 
 at the suit of the judgment debtor." And it has also been held 
 that, unless founded upon a valid consideration, a client cannot 
 recover back the costs of suit paid out by him with the under- 
 standing that, in case of failure in the litigation, the attorney 
 would reimburse him therefor. Such an agreement has been said 
 to be not only nudum factum, but also contrary to public policy.^' 
 
 § 571. Recovery of Penalties for Taking Unlawful Fees. — 
 
 In the early days, in some jurisdictions at least, the compensation 
 of counsel for certain services was fixed by statute, and the taxa- 
 tion of larger fees than those so fixed was prohibited under pen- 
 alty.^' Only one penalty, however, could be collected for unlaw- 
 ful charges made in one bill of costs, irrespective of the number 
 of items which were alleged to be excessive.^" These laws are now 
 obsolete; but there are still instances wherein certain fees are 
 regulated by statute or rule of court.^* It has been held that a 
 statute making it unlawful for "officers" to charge illegal fees, 
 does not apply to attorneys; and this is especially true where 
 counsel fees are not regulated by statute.^^ 
 
 17 McDonald v. Napier, 14 Ga. 89. 20 Tanner v. Croxall, 17 N. J. L. 332. 
 
 18 See supra, § 162. 21 As to taxable costs and statutory 
 Instate V. Andrews, 51 N. H. 582; fees generally, see supra, §§ 484, 485. 
 
 Waters v. Whittemore, 22 Barb. (N. 22 Rawson v. Porter, 9 Greenl. 
 
 Y.) 593. (Me.) 119. 
 
§ 572. In General. 
 
 CHAPTER XXIII. 
 
 LIENS GENERALLY 
 Bight to Lien. 
 
 The Retaining Lien. 
 
 573. Retaining Lien Defined and Distinguished. 
 
 574. Origin. 
 
 575. Nature. 
 
 576. Necessity of Possession. 
 
 577. Compelling Surrender of Possession without Payment. 
 
 The Charging Lien. 
 
 578. Charging Lien Defined and Distinguished. 
 
 579. Origin of Lien. 
 
 580. Basis of Lien. 
 
 581. Nature of Lien. 
 
 582. Under Statutes. 
 
 583. Generally. 
 
 Lien Created iy Contract. 
 
 To Whom Lien Accrues. 
 
 584. Generally. 
 
 585. Attorneys of Record. 
 
 586. Associate and Assistant Counsel. 
 
 Priority of Lien. 
 
 587. In General. 
 
 588. As against Unsecured Creditors. 
 
 589. As against Creditors Armed with Process. 
 
 590. As against Secured Creditors. 
 
 591. Rule in Georgia. 
 
 968 
 
§ 572] LIENS GENEEALLT. 969 
 
 Services and Compensation for Which Lien Exists. 
 
 § 592. Taxable Coats. 
 
 593. Compensation, Disbursements, and Expenses. 
 
 594. Compensation Due in Particular Suit or Proceeding. 
 
 595. Incidental Services. 
 
 596. Nature of Services and for Whom Rendered. 
 
 597. As to Court Wherein Services Are Bendered. 
 
 598. Services Rendered for Defendant. 
 
 599. Extent of Retaining Lien. 
 
 Notice of Lien, 
 
 600. Necessity of Notice. 
 
 601. Sufficiency of Notice Generally. 
 
 602. Notice Presumed. 
 
 603. Filing or Recording of Lien. 
 
 604. Requirements as to Writing and Stating Amount of Claim. 
 
 605. To Whom Notice Should Be Given. 
 
 Waiver or Loss of Lien. 
 
 606. In General. 
 
 607. Satisfaction or Release of Judgment. 
 
 608. Acceptance of Independent Security. 
 
 609. Bringing Suit for Compensation. 
 
 610. Abandonment of Cause. 
 
 611. Assignment by Attorney. 
 
 612. Waiver or Loss of Retaining Lien. 
 
 Bight to Lien. 
 
 § 572. In General. — The right of an attorney at law to re- 
 tain the papers, money, or other property of a client, which comes 
 into his possession in consequence of the professional relationship, 
 as a security for the payment of his fees, has never been seriously 
 questioned. This right is called a retaining lien, and will be 
 more fully considered hereafter.'' Beyond this, however, there is 
 no uniform rule as to the right of an attorney to a lien for his 
 compensation. At a very early day it was held in England that 
 an attorney could enforce his claim for services rendered, against 
 a judgment recovered by him for his client; and a like rule was 
 
 1 See infra, §§ 573-577. 
 
970 MENS QENEEALLT. [§ 573 
 
 adopted in some of the states in this country, either as a part of 
 the common law or by legislation. This right, which is usually 
 classified as a charging lien, will also be considered later.* At 
 the present day, however, charging liens are usually regulated by 
 statutes * which, as a rule, specify the services for which a lien 
 shall accrue,* the property or rights to which it shall attach,* the 
 notice thereof to adverse parties and other persons who may be 
 affected thereby,® and the manner of its enforcement ; '' while in 
 other jurisdictions the right to a charging lien is not recognized 
 at all.* 
 
 The Retaining Lien. 
 
 § 573. Retaining Lien Defined and Distinguished. — 
 
 For the sake of convenience, the liens which may be asserted by 
 an attorney at law are known, respectively, as "retaining" and 
 "charging" liens.' They are also divided into "general" and "par- 
 ticular" liens. A particular lien is said to exist when the claim 
 therefor arises with respect to the property claimed thereunder; 
 while the general lien arises where the debt results' from the gen- 
 eral balance of the account.*' The retaining lien is both particular 
 and general ; but the charging lien is only particular.** 
 
 The retaining lien may be defined as the right of an attorney 
 at law to retain possession of such documents, money, or other 
 
 2 See infra, §§ 578-582. New Yorfc.— Goodrich v. McDon- 
 
 3 See infra, § 582. aid, 112 N. Y. 157, 19 N. E. 649; 
 
 4 See infra, §§ 592-599. Leask v. Hoagland, 64 Misc. 156, 118 
 
 5 See infra, § 613 et aeq. N. Y. S. 1035. 
 
 6 See infra, §§ 600-605. Vermont'.— H.\iT\hert v. Brigham, 56 
 TSee infra, § 653 et seq. Vt. 372; Weed Sewing Mach. Co. v. 
 
 8 See infra, § 579 note. Boutelle, 56 Vt. 570, 48 Am. Rep. 821. 
 
 9 United States. — In re Wilson, 12 10 Butchers' Union Slaughter-House 
 Fed. 235. & Live Stock Landing Co. v. Cres- 
 
 IlUnois. — Sanders v. Seelye, 128 cent City Live Stock Landing & 
 
 111. 631, 21 N. E. 601, affirming 27 Slaughter-House Co., 41 La. Ann. 
 
 111. App. 288. 355, 6 So. 508. 
 
 Louisiana. — Butchers' Union 11 Butchers' Union Slaughter-House 
 
 Slaughter-House & Live Stock Land- & Live Stock Landing Co. v. Cres- 
 
 ing Co. V. Crescent City Live Steele cent City Live Stock Landing & 
 
 Landing & Slaughter-House Co... 41 Slaughter-House Co., 41 La. Ann. 
 
 La. Ann. 355, 6 So. 508. 355, 6 So. 508. 
 
g 574] LIBNS GENERALLY. 971 
 
 property of his client comiDg into his hands by virtue of the pro- 
 fessional relationship, until he has been paid for his services,'* 
 or until he voluntarily surrenders possession of the property 
 ■with or without payment.'* Viewed in this light, there is prac- 
 tically no distinction between an attorney's lien and the lien of a 
 mechanic, materialman, or other artisan.'* There is a wide differ- 
 ence, however, between an attorney's retaining lien and his charg- 
 ing lien, not only in respect to the extent of the claim secured by 
 each,'° but also as to the manner of their enforcement.'' In 
 some jurisdictions, however, the retaining and charging liens have 
 been so combined in legislation regulating this subject as to make 
 these distinctions valueless. The charging lien generally will be 
 considered hereafter." 
 
 § 574. Origin. — The retaining lien is derived from the com- 
 mon law," and is based partly on custom, and partly on the desire 
 to prevent circuity of action.'® The same power which authorizes 
 courts summarily to enforce the performance by attorneys of their 
 duties towards their clients, is exercised to protect the just rights 
 of attorneys in settlements between them and their clients,^" and 
 
 18 United States. — In re Wilson, 12 Vermont. — Weed Sewing Mach. Co. 
 
 Fed. 235 ; In re Gillaspie, 190 Fed. 88. v. Boutelle, 56 Vt. 570, 48 Am. Eep. 
 
 /Hjnots.— Sanders v. Seelye, 128 111. 821. 
 
 631, 21 N. E. 601. Doctrine that possession must be 
 
 Indiana. — Koons v. Beach, 147 Ind. consistent with lien rights, see infra, 
 
 137, 45 N. E. 601, 46 N. E. 587. § 639. 
 
 NelrasJca. — Sayre v. Thompson, 18 13 Scott v. Morris, 131 111. App. 
 
 Neb. 33, 24 N. W. 383; Cones v. 605. And see w/ra, § 612. 
 
 Brooks, 60 Neb. 698, 84 N. W. 85. ULeask v. Hoagland, 64 Misc. 
 
 New ror/c— Rooney v. Second Ave. 156, 118 N. Y. S. 1035. 
 
 E. Co., 18 N. Y. 372; Goodrich v. "See infra, §§ 592-599. 
 
 McDonald, 112 N. Y. 157, 19 N. E. 18 See infra, § 653 et seq. 
 
 649; Leask v. Hoagland, 64 Misc. "See infra, §§ 578-582. 
 
 156, 118 N. Y. S. 1035. ' "Sayre v. Thompson, 18 Neb. 43, 
 
 Pennsylvania. — Balsbaugh v, Fraz- 24 N. W. 383; In re Lexington Ave., 
 
 er, 19 Pa. St. 95; Dubois's Appeal, 30 App. Div. 602, 52 N. Y. S. 203; 
 
 38 Pa. St. 231, 80 Am. Dec. 478; Me- Matter of McGuire, 106 App. Div. 
 
 Kelvy's Appeal, 108 Pa. St. 615, 131, 94 N. Y. S. 97. 
 
 practically overruling Walton v. Dick- 19 Weed Sewing Mach. Co. v. Bou- 
 
 erson, 7 Pa. St. 376, in so far as it telle, 56 Vt. 570, 48 Am. Rep. 821. 
 
 may be deemed to be contrary to the 20 Butchers' Union Slaugliter-House 
 
 proposition stated in the text. & Live Stock Landing Co. v. Ores- 
 
972 LIENS GENERALLY. [§ 575 
 
 it is neither inapplicable to the habits and conditions of our so- 
 ciety, nor contrary to the genius, spirit, and objects of our insti- 
 tutions.^ And in some jurisdictions, wherein the retaining lien 
 is regulated by statute, it has been held that such statutes are 
 merely declaratory of the common law, and that the attorney has 
 the dual right to claim his lien either under the common law or 
 under the statute.* It has been held, however, that the right of 
 an attorney to retain compensation from funds in his hands re- 
 sults from the law of set-off, and not from the law of lien.' And 
 in Louisiana the right to retain compensation is governed by the 
 law of mandate.* The federal courts recognize no lien at common 
 law in behalf of an attorney beyond that given by the local law ; ' 
 but where lien rights exist, the federal courts do not hesitate to 
 enforce them.^ 
 
 § 575. Nature. — The retaining lien is a mere right to retain 
 the papers or other property on which it exists ; ' and while it 
 attaches to every species of property belonging to the client, and 
 which has come to the attorney's possession in the course of his 
 employment,* it cannot be actively asserted or enforced.* It is 
 founded upon possession," and is unassignable.'^ Indeed, any 
 transfer of the possession, without the consent of the client, is not 
 
 cent City Live Stock Landing & «U. S. v. Boyd, 79 Fed. 858. 
 
 Slaughter-House Co., 41 La. Ann. 'In re Wilson, 12 Fed. 235; Cur- 
 
 355, 6 So. 508. tis v. Richards, 4 Idaho 434, 40 Pac. 
 
 1 Sanders t;. Seelye, 128 111. 63], 21 57, 95 Am. St. Eep. 134; Foss v. 
 
 N. E. 601. Cobler, 105 la. 728, 75 N. W. 516; 
 
 2Sayre v. Thompson, 18 Neb. 43, McDonald v. Charleston, C. & C. R. 
 
 24 N. W. 383; Zentmire v. Brailey, Co., 93 Tenn. 281, 24 S. W. 252. 
 
 89 Neb. 158, 130 N. W. 1047; Matter 8 Leask v. Hoagland, 64 Misc. 156, 
 
 of McGuire, 106 App. Div. 131, 94 118 N. Y. S. 1035. 
 
 N. Y. S. 97. 9 See infra, § 653 et seq. 
 
 3 Wells V. Hatch, 43 N. H. 246. lO Leask v. Hoagland, 64 Misc. 156, 
 
 4 Butchers' Union Slaughter-House 118 N. Y. S. 1035. See also the fol- 
 & Live Stock Landing Co. v. Cres- lowing section, and compare § 639 
 cent City Live Stock Landing & infra. 
 
 Slaughter-House Co., 41 La. Ann. 355, H Sullivan v. New York, 68 Hun 
 
 6 So. 508. 544, 22 N. Y. S. 1041 ; Leask v. Hoag- 
 
 6 Gregory v. Pike, 67 Fed. 837, 21 land, 64 Misc. 156, 118 N. Y. S. 1035. 
 
 U. S. App. 658, 15 C. C. A. 33. And see also infra, § 611. 
 
§§ 576, 577] LIENS GENERALLY. 973 
 
 only a breach of the attorney's duty to his client, but confers no 
 right on the transferee.** 
 
 § 576. Necessity of Possession. — It is essential to the ex- 
 istence of a retaining lien that the property claimed thereunder 
 be in the possession of the attorney ; ** thus, it has been held that 
 an attorney has no lien on papers filed by him in court in his 
 client's cause; nor can he withdraw them.** So, also, it is essen- 
 tial that an attorney's possession of property, as against which he 
 asserts a retaining lien, should have been obtained in the course 
 of his professional employment ; *' but, if the possession had been 
 so obtained, the particular purpose for which the property was 
 placed with the attorney is immaterial,*® excepting, of course, 
 that such purpose must not be inconsistent with, or adverse to, 
 the attorney's right to claim a lien thereon." 
 
 § 577. Compelling Surrender of Possession without Pay- 
 ment. — An attorney at law cannot, ordinarily at least, be com- 
 pelled to surrender the papers or other property held by him by 
 virtue of a retaining lien, until his fees have been paid,** even by 
 
 12 Sullivan v. New York, 68 Hun Showalter, 3 WlUson Civ. Cas. Ct. 
 544, 22 K. Y. S. 1041. App. § 69; Thomson v. Findlater 
 
 13 United States.— In re WilsoQ, 12 Hardware Co., 156 S. W. 301. 
 
 Fed. 235. Vermont. — Weed Sewing Maeh. Co. 
 
 Illinois.— Nichols v. Pool, 89 HI. v. Boutelle, 56 Vt. 670, 48 Am. Eep. 
 
 491. 821. 
 
 Nebraska. — Cones v. Brooks, 60 West Virginia. — Hazeltine v. Keen- 
 Neb. 698, 84 N. W. 85. an, 54 W. Va. 600, 46 S. E. 609, 102 
 
 New York.— St: John v. Diefendorf, Am. St. Kep. 953. 
 
 12 Wend. 261 ; Sullivan v. New York, 14 Dodson v. Riddle, 1 Ohio Dee. 
 
 68 Hun 544, 22 N. Y. S. 1041; Leask (Reprint) 54, 1 Cine. L. Bui. 393. 
 
 V. Hoagland, d*4 Misc. 156, 118 N. Y. 15 Henry v. Fowler, 3 Daly (N. Y.) 
 
 S. 1035; Hinman v. Devlin, 40 .App. 199; Maxtin v. Throckmorton, 15 
 
 Div. 234, 57 N. Y. S. 1037. Pa. Super. Ct. 632 ; Winans v. Grable, 
 
 OMo.— Dodson v. Riddle, 1 Ohio 18 S. D. 182, 99 N. W. 1110. 
 
 Dec. 54. 16 Sanders v. Seelye, 128 111. 631, 
 
 Pennsylvania. — Eddinger v. Adams, 21 N. E. 601; Scott v. Morris, 131 
 
 4 Kulp 401; Dubois' Appeal, 38 Pa. 111. App. 605. 
 
 St. 231, 80 Am. Dec. 478; Appeal of IV See infra, § 639. 
 
 McKelvy, 108 Pa. St. 615. li England.— S.oas v. Loughton, 1 
 
 TeaJos.— Texas Mex. R. Co. v. Ves. & B. 349. 
 
974 LIENS GENERALLY. [§ 577 
 
 a subpcena duces tecum issued on behalf of the client; *' nor can 
 he be compelled to deliver papers so held to the court.*" But an 
 attorney may be compelled to produce papers -which are in his 
 possession, and on which he claims a lien, in case of an emergency 
 pressing for their use ; ^ thus, he may be compelled to produce a 
 will for the purpose of having it probated.* And in England the 
 rule was modified so as to compel a solicitor to deliver to his 
 successor such of the client's papers as were material to the due 
 prosecution of the cause, without prejudice, however, to lien 
 rights, and upon the giving of an undertaking either to return 
 such papers undefaced, or to hold them subject to the lien of the 
 original solicitor.^ So, where a dispute arises between attorney 
 and client as to the amount of the attorney's compensation, the 
 matter may be determined by the court, and the surrender of the 
 property ordered on payment of the amount found to be due,* or 
 on the payment into court of the amount claimed pending the 
 determination,' or on the giving of an undertaking therefor.^ But 
 it seems that where a client discharges his attorney without cause, 
 the attorney will not be compelled to produce papers upon which 
 he has a lien.' 
 
 United States.— In re Wilson, 12 2 In re Bracher's Will, 60 N. J. 
 
 Fed. 235; Davis v. Davis, 90 Fed. Eq. 350, 51 Atl. 63. 
 
 791. SHeslop V. Metcalfe, 3 Myl. & C. 
 
 Idaho. — Curtis v. Richards, i Idaho (Eng.) 183; Colegrave v. Manley, T. 
 
 434, 40 Pac. 57, 95 Am. St. Rep. 134. & R. (Eng.) 400; Cane v. Martin, 2 
 
 New York. — Ulster County v. Brod- Beav. (Eng.) 584. 
 
 head, 44 How. Pr. 411; In re H , 4MePherson v. Cox, 96 U. S. 404, 
 
 87 N. Y. 521; Rubel v. Burr, 132 24 U. S. (L. ed.) 746; Falardeau t. 
 
 App. Div. 910, 117 N. Y. S. 63. Washburn, 199 Mass. 363, 85 N. E. 
 
 Tennessee. — Hunt v. McClanahan, 171. 
 
 1 Heisk. 506. SRe Bevan, 33 Bea»r. (Eng.) 439. 
 
 19 Davis V. Davis, 90 Fed. 791. 6 Re Jewitt, 34 Beav. (Eng.) 22; 
 
 80 Finance Co. of Pennsylvania v. Cunningham v. Widing, 5 Abb. Pr. 
 
 Charleston, 0. & C. R. Co., 48 Fed. (N. Y.) 413. 
 
 45, 52 Fed. 526. THeslop v. Metcalfe, 3 Myl. & C. 
 
 iBrassington v. Brassington, 1 (Eng.) 183; Bozon v. Bolland, 4 
 Sim. & St. (Eng.) 455; Ross d. Lough- Myl. & C. (Eng.) 354; Lord v. Worm- 
 ton, 1 Ves. & B. (Eng.) 349; Trust leighton, Jac. (Eng.) 580. 
 V. Repoor, 16 How. Pr. (N. Y.) 570. 
 
§ 578] LlEJS'S GENERALLY. 975 
 
 The Charging Lien. 
 
 § 578. Charging Lien Defined and Distinguished. — 
 
 The charging lien, originally, was defined to be the right of an 
 attorney at law to recover compensation for his services from a 
 fund recovered by his aid, and also the right to be protected l)y 
 the court to the end that such recovery might be effected.' Unlike 
 the retaining lien, the charging lien does not depend upon pos- 
 session,® but upon the favor of the court in protecting attorneys, 
 as its own officers, by taking care, ex cequo et bono, that a party 
 should not run away with the fruits of the cause without satisfy- 
 ing the legal demands of the attorney by whose industry those 
 fruits were obtained.*" In this connection the use of the term 
 "lien" has been criticised as an incorrect expression, and it has 
 been stated that the attorney has merely a, claim to the equitable 
 interference of the court to intervene for his protection.'* ]S"or 
 is the charging lien a merely passive one, but, on the contrary, 
 it entitles the attorney to take active steps to secure its satisfac- 
 tion.*^ So, also, a charging lien may be assigned, where such 
 assignment carries with it no breach of the attorney's duty to 
 preserve his client's confidence inviolate ; ** where, however, the 
 attorney is entrusted with property bound by the lien, as where 
 papers of the client come into his possession in the course of his 
 professional employment, an entirely different question is pre- 
 sented.** The distinction between an attorney's "retaining lien" 
 upon papers in his possession, and his "charging lien" upon a 
 judgment or other fund, is carefully pointed out in Bozon v. Bol- 
 land,*' wherein the Lord Chancellor said: "The solicitor's claim 
 upon the fund has been called transferring the lien from the docu- 
 ment to the fund recovered by its production. But there is no 
 
 8 Fillmore v. Wella, 10 Colo. 228, W. (Eng.) 441; Hough v. Edwards, 
 15 Pac. 343, 3 Am. St. Rep. 567; Ran- 1 H. & N. (Eng.) 171. 
 
 dall V. Van Wagenen, 115 N. Y. 527, 12 In re Wilson, 12 Fed. 235. 
 
 22 N. E. 361, 12 Am. St. Rep. 828; "Leask v. Hoagland, 64 Misc. 156, 
 
 Weed Sewing-Machine Co. v. Bou- 118 N. Y. S. 1035. 
 
 telle, 56 Vt. 570, 48 Am. Rep. , 821. 14 Leask v. Hoagland, 64 Misc. 156, 
 
 9 In re Wilson, 12 Fed. 235. 118 N. Y. S. 1035. 
 
 10 See infra, § 580. 15 4 Myl. & C. (Eng.) 354, 359. 
 "Barker v. St. Quintin, 12 M. & 
 
976 LIENS GENEEALLT. [§ 579 
 
 transfer; for the lien upon the deed remains as before, though 
 perhaps of no value; and whereas the lien upon the deed could 
 never have been actively enforced, the lien upon the fund, if es- 
 tablished, would give a title to payment out of it. The active lien 
 upon the fund, if it exists at all, is newly created, and the passive 
 lien upon the deed continues as before." At the present day, 
 however, the charging lien of an attorney has been so enlarged, in 
 many jurisdictions, as to encompass much more than it did origi- 
 nally ; this subject will be considered hereafter.'* 
 
 § 579. Origin of Lien. — The right of an attorney to a charg- 
 ing lien on a judgment or other fund recovered by him for his 
 client, as security for his fees, is undoubtedly of common-law 
 origin," notwithstanding the many expressions to the contrary 
 to be found in the books.'' The case of Welsh v. Hole,'* decided 
 by Lord Mansfield in 1779, seems to have been the first authentic 
 declaration of the existence of the charging lien. That great 
 jurist said: "An attorney has a lien on the money recovered 
 by his client for his bill of costs ; if the money come to his hands, 
 he may retain to the amount of his bill. He may stop it in transitu 
 if he can lay hold of it. If he apply to the court, they will prevent 
 its being paid over till his demand is satisfied. I am inclined to 
 go farther, and to hold that, if the attorney gave notice to the 
 defendant not to pay till his bill should be discharged, a payment 
 by the defendant after such notice would be in his own wrong, 
 
 16 See infra, § 613 et seq. may have resulted from the iailure 
 
 M Massachusetts & Southern Const, to recognize the distinction between 
 
 Co. V. Gill's Creek Tp., 48 Fed. 145; attorneys at law in England and in 
 
 Brown v. Morgan, 163 Fed. 395; this country. Here, the attorney is 
 
 Stewart v. Flowers, 44 Miss. 513, 7 also counsel and advocate, and may 
 
 Am. Eep. 707; Young v. Renshaw, recover compensation as such (see 
 
 102 Mo. App. 173, 76 S. W. 701; supra, § 404 ); while in England, coun- 
 
 Goodrich v. McDonald, 112 N. Y. sel fees are not recoverable, and those 
 
 163, 19 N. E. 648; Eandall v. Van of attorneys and solicitors are fixed 
 
 Wagemen, 115 N. Y. 527, 22 jST. E. by statute ( see swpro, § 402 ) . In this 
 
 361, 12 Am. St. Rep. 828; Canary r. connection it will be observed that 
 
 Russell, 10 Misc. 597, 24 Civ. Proc. the charging lien originated as to 
 
 109, 31 N. Y. S. 291. "attorney's" fees. 
 
 18 Statements to the effect that the 19 1 Dougl. (Eng.) 238. 
 charging lien is of statutory origin. 
 
§ 579] 
 
 LIENS GENEEALLT. 
 
 9T7 
 
 and like paying a debt that has been assigned, after notice."*" 
 It is evident, however, that the charging lien was fairly well 
 known to the law at that time, for, in an earlier case, in speak- 
 ing of attorneys' liens, the same judge said that they were "estab- 
 lished on general principles of justice, and that courts both of law 
 and equity have now carried it so far, that an attorney or solicitor 
 may obtain an order to stop his client from receiving money re- 
 covered in a suit in which he has been employed for him, till his 
 bill is paid." ^ The case of Welsh v. Hole, supra, was followed 
 in England and in many of the states in this country, so that an 
 attorney's right to an equitable lien on a judgment recovered by 
 him for his client, to the extent of his reasonable fees at least, 
 became firmly established.* In some jurisdictions, however, the 
 charging lien is not recognized,' while in others it is regulated by 
 statute ; * and in Pennsylvania, although the charging lien is not 
 
 80 See also Barker v. St. Quintin, 
 12 M. & W. (Eng.) 441; Goodrich 
 V. McDonald, 112 N. Y. 157, 19 N. E. 
 649. 
 
 1 WUkins V. Carmiohael, 1 Dougl. 
 (Eng.) 101, 105. See also Goodrich 
 V. McDonald, 112 N. Y. 157, 19 N. E. 
 649. 
 
 ^England. — Sullivan v. Pearson, L. 
 E. 4 Q. B. 153, 38 L. J. Q. B. 65; 
 Barker v. St. Quintin, 12 M. & W. 
 441, 1 Dowl. & L. 542; Griffin v. 
 Eyles, 1 H. Bl. 122; Cox v. Priehard, 
 20 L. J. Q. B. 353; Slater v. Sunder- 
 land, 33 L. J. Q. B. 37, 9 L. T. N. S. 
 422. 
 
 United States. — U. S. v. Boyd, 79 
 Fed. 858. 
 
 Alaiama. — Warfield v. Campbell, 
 38 Ala. 527, 82 Am. Dec. 724; Ex p. 
 Lehman, Durr & Co., 59 Ala. 631; 
 MeWilliama v. Jenkins, 72 Ala. 480; 
 Higley v. White, 102 Ala. 604, 15 
 So. 141. See also Central E. & B. 
 Co. V. Pettus, 113 U. S. 116, 5 S. Ct. 
 387, 25 U. S. (L. ed.) 915 (decided 
 under the Alabama practice). 
 
 Attys. at L. Vol. II.— 62. 
 
 Indiana. — Hill v. Brinkley, 10 Ind. 
 102. 
 
 Mississippi. — Stewart v. Flowers, 
 44 Miss. 518, 7 Am. Eep. 707. 
 
 New Hampshire. — Young v. Dear- 
 born, 27 N. H. 324; Christie v. Saw- 
 yer, 44 N. H. 298. 
 
 Neio York. — Williams v. Ingersoll, 
 23 Hun 284; Haight v. Holcomb, 7 
 Abb. Pr. 210; Hall v. Ayer, 9 Abb. 
 Pr. 220; Cragin v. Travis, 1 How. 
 Pr. 157; Eooney v. Second Ave. E. 
 Co., 18 N. Y. 368. 
 
 3 Illinois. — Sanders v. Seelye, 128 
 111. 631, 21 N. E. 601, affirming 27 
 111. App. 288; Cameron v. Boeger, 
 102 111. App. 649, affirmed 200 111. 
 84, 65 N. E. 690, 93 Am. St. Eep. 165. 
 
 Pennsylvania. — Dubois's Appeal. 38 
 Pa. St. 231, 80 Am. Dec. 478; Mc- 
 Kelvy's Appeal, 108 Pa. St. 615; 
 Patrick v. Smith, 2 Pa. Super. Ct. 
 113; In re Aber, 18 Pa. Super. Ct. 
 no. See also Cain v. Hockensmith 
 "Wheel & Car Co., 157 Fed. 992 (de- 
 cided under the Pennsylvania rule). 
 
 * See infra, § 582. And see Hump- 
 
9Y8 LIENS GENEEALLY. [§§ 580, 581 
 
 recognized, it seems that an attorney may claim his fees from a 
 fund "within the grasp of the court." * 
 
 § 580. Basis of Lien. — The doctrine under which the charg- 
 ing lien became effective was established on general principles of 
 justice,* and it rests upon the theory that one should not be per- 
 mitted to profit by the result of litigation without satisfying the 
 demand of his attorney." It has been well described as "a mere 
 arbitrary exercise of power by the courts; not arbitrary in the 
 sense that it was unjust or improper, but in the sense that it was 
 not based upon any right or principle recognized in other cases." 
 The parties being in court, and a suit commenced and pending, 
 the courts invented this practice, and assumed this extraordinary 
 power, for the purpose of protecting attorneys in their compen- 
 sation.' At the present day, however, the charging lien is recog- 
 nized and regulated by statute in most jurisdictions.* 
 
 § 581. Nature of Lien. — The attorney's charging Hen is 
 equitable in its nature,^" whether it be asserted as a common-law 
 right, or under a statute. Even the decisions in this country, 
 which confine the existence and application of the charging lien 
 to the narrowest limits, always speak of it as an equitable lien, 
 
 tulips Driving Co. v. Cross, 65 Wash. New York. — Eooney v. Second Ave. 
 
 636, 118 Pae. 827, 37 L.R.A.(N.S.) R. Co. 18 N. Y. 372; Goodrich v. 
 
 226, where it is said that it is not McDonald, 112 N. Y. 163, 19 N. E. 
 
 necessary to inquire whether an at- 649; Ward v. Wordsworth, 1 E. D. 
 
 torney had a lien on his client's Smith 598; Perry v. Myer, 89 N. Y. 
 
 judgment at common law; for the S. 347. 
 
 statute covers the entire subject, and Tennessee. — Brown) v. Biglcy, 3 
 
 creates the lien, and that is the only Tenn. Ch. 623. 
 
 one that can be enforced. West Virginia. — Eeniek v. Luding- 
 
 BSeybert- v. Salem Tp., 22 Pa. ton, 16 W. Va. 391. 
 
 Super. Ct. 459. 8 Stearns v. Wollenberg, 51 Ore. 
 
 6 Goodrich v. McDonald, 112 N. Y. 88, 92 Pae. 1079, 14 L.E.A.(N.S.) 
 
 157, 19 N. E. 649. 1095. 
 
 "> England. — Read v. Dupper, 6 T. 9 See infra, § 582. 
 
 R. 361. 10 Hough V. Edwards, 37 Eng. L. 
 
 United States. — In re Wilson, 12 & Eq. 470; Ackerman v. Ackerman, 
 
 Fed. 235. 14 Abb. Pr. (N. Y.) 229; Brown v. 
 
 Mississippi. — See Stewart v. Flow- Bigley, 3 Tenn. Ch. 623; Renick v. 
 
 ers, 44 Miss. 513, 7 Am. Rep. 707. Ludington, 16 W. Va. 391. 
 
§ 582] 
 
 LIENS GENEEALLT. 
 
 979 
 
 right, or privilege.** It is a right to the equitable interference 
 of the court to have a judgment or other property held as security 
 for the payment of the attorney's compensation.** And while, in 
 a broad sense, it is properly denominated a "lien," it has but few 
 points of resemblance to the ordinary lien upon tangible prop- 
 erty.*' Indeed, it differs from every other lien known to the 
 law, in that it may exist although the attorney has not nor, in 
 any proper sense, can he have, possession of the judgment or 
 other property to which the lien may attach.** It has been held 
 that an attorney's charging lien is, to some extent at least, an 
 ownership in the property to which it attaches, and, as such, as 
 effective as would be an assignment thereof as collateral security.** 
 
 § 582. Under Statutes. — In most jurisdictions the attorney's 
 charging lien is provided for and regulated by legislation; and, 
 of course, where this is true, the statutory provisions must gov- 
 ern.** Statutes of this character, being remedial, are to be liberal- 
 
 11 Fillmore v. Wells, 10 Colo. 228, 
 15 Pac. 343, 3 Am. St. Eep. 567. 
 
 18 Mercer v. Graves, L. R. 7 Q. B. 
 (Eng.) 499; In re Gillaspie, 190 Fed. 
 88; Koons v. Beach, 147 Ind. 137, 45 
 N. E. 601, 46 N. E. 587; Bruce v. 
 Anderson, 176 Mass. 161, 57 N. E. 
 354. 
 
 "Wright V. Cobleigh, 21 N. H. 
 341. 
 
 14 Goodrich v. McDonald, 112 N. Y. 
 157, 19 N. E. 649. 
 
 iSHobson V. Watson, 34 Me. 20, 
 56 Am. Dec. 632. 
 
 16 United States. — In re Scoggin, 5 
 Sawy. 549, 21 Fed. Gas. No. 12,511; 
 In re Gillaspie, 190 Fed. 88. 
 
 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. Rep. 
 567. 
 
 Georgia. — Tarver v. Tarver, 53 Ga. 
 43. 
 
 Illinois. — People v. Nedrow, 25 111. 
 App. 28, 122 111. 363, 13 N. E. 533. 
 
 Iowa. — Ward v. Sherbondy, 96 la. 
 477, 65 N. w. 413. 
 
 Louisiana. — See Butchers' Union 
 Slaughter-House & Live Stock Land- 
 ing Co. V. Crescent City Live Stock 
 Landing & Slaughter-IIouse Co., 41 
 La. Ann. 355, 6 So. 508. 
 
 Massachusetts. — Ocean Ins. Co. v. 
 Rider, 22 Pick. 210; Baker v. Cook, 
 11 Mass. 236; Thayer v. Daniels, 113 
 Mass. 129. 
 
 Minnesota. — Forbush v. Leonard, 8 
 Minn. 303; Crowley v. Le Due, 21 
 Minn. 412; Nielsen v. Albert Lea, 
 91 Minn. 388, 392, 98 N. W. 195, 197. 
 
 Missouri. — Frissell v. Haile, 18 Mo. 
 18; Gulick v. Huntley, 144 Mo. 252, 
 46 S. W. 154; Roberts v. Nelson, 22 
 Mo. App. 28; Alexander v. Grand 
 Ave. R. Co., 54 Mo. App. 66; Young 
 V. Renshaw, 102 Mo. App. 173, 76 
 S. W. 701; Conkling v. Austin, 111 
 Mo. App. 292, 86 S. W. 911; Curtis 
 V. Metropolitan St. R. Co., 118 Mo. 
 App. 341, 94 S. W. 762. 
 
980 
 
 LIENS GENEBALLT. 
 
 [§ 583 
 
 ly construed," and should not be given a retroactive effect, unless 
 that purpose is made manifest by the language of the act.** 
 
 Lien Created hy Contract. 
 
 § 583. Generally. — In some jurisdictions a contract between 
 attorney and client, whereby the attorney is to receive a stipulated 
 portion of the recovery, has been held to be an equitable lien,*' 
 
 New York. — New York Judiciary 
 Law, § 475; Fischer-Hansen v. Brook 
 lyn Heights R. Co., 173 N. Y. 492^ 
 66 N. E. 395, reversing 63 App. Div, 
 356, 71 N. Y. S. 513; In re Pieris 
 176 N. Y. 566, 68 N. E. 1123. af- 
 firming 82 App. Div. 466, 81 N. Y 
 S. 927; Roehford v. Metropolitan St, 
 R. Co. 50 App. Div. 261, 30 Civ, 
 Proc. 285, 63 N. Y. S. 1036; Mathot 
 V. Triebel, 98 App. Div. 328, 90 N. 
 Y. S. 903; Kuehn v. Syracuse Rapid 
 Transit R. Co., 104 App. Div. 580, 93 
 N. Y. S. 883 ; In re Scherer, 111 App. 
 Div. 23, 35 Civ. Proc. 314, 97 N. Y. 
 S. 171; Ransom v. Cutting, 112 App. 
 Div. 150, 98 N. Y. S. 282, affirmed 
 188 N. Y. 447, 81 N. E. 324; In re 
 Edward Ney Co., 114 App. Div. 467, 
 99 N. Y. S. 982; In re Robinson, 59 
 Misc. 323, 112 N. Y. S. 280; Lansing 
 V. Ensign, 62 How. Pr. 363. 
 
 'North Dakota. — Clark v. Sullivan, 
 3 N. D. 280, 55 N. W. 733. 
 
 Washington. — Humptulips Driving 
 Co. V. Cross, 65 Wash. 636, 118 Pac. 
 827, 37 L.R.A.(N.S.) 226. 
 
 17 Crowley v. Le Due, 21 Minn. 
 412, distinguishing Forbush v. Leon- 
 ard, 8 Minn. 303; Wait v. Atchison, 
 T. & S. F. R. Co., 204 Mo. 491, 103 
 S. W. 60; Fischer-Hansen v. Brook- 
 lyn Heights R. Co., 173 N. Y. 492, 66 
 N. E. 395. 
 
 18 Leahart v. Deedmeyer, 158 Ala. 
 
 295, 48 So. 371; Northup v. Hay- 
 ward, 102 Minn. 307, 12 Ann. Cas. 
 341, 113 N. W. 701; Goodrich v. 
 McDonald, 112 N. Y. 157, 19 N. E. 
 649; Matter of Rowland, 55 App. Div. 
 66, 66 N. Y. S. 1121; Adee v. Adee, 
 55 App. Div. 63, 66 N. Y. S. 1101; 
 Potter V. Ajax Min. Co., 19 Utah 
 421, 57 Pac. 270. 
 
 19 United Staies.— Wilkinson v. Til- 
 den, 21 Blatchf. 192, 14 Fed. 778; In 
 re Paschal, 10 Wall. 483, 19 U. S. 
 (L. ed.) 992; Wylie v. Coxe, 15 How. 
 415, 14 U. S. (L. ed.) 753; Ingersoll 
 V. Coram, 211 U. S. 335, 29 S. Ct. 
 92, 53 U. S. (L. ed.) 208, affirming 
 127 Fed. 418. See also Greenhalgh 
 V. The Alice Strong, 57 Fed. 249, 
 distinguishing Kendall v. U. S., 7 
 WaU. 113, 19 U. S. (L. ed.) 85; 
 Mackall v. Willoughhy, 167 U. S. 681, 
 17 S. Ct. 954, 42 U. S. (L. ed.) 323. 
 
 California. — Goad v. Hart, 128 Cal. 
 197, 60 Pac. 761, 964. 
 
 Colorado. — Patrick v. Morrow, 33 
 Colo. 509, 81 Pac. 242, 108 Am. St. 
 Rep. 107. 
 
 Connecticut. — Cooke v. Thresher, 
 51 Conn. 105. 
 
 District of Columbia. — Hutchinson 
 V. Worthington, 7 App. Cas. 548. 
 
 Illinois. — Smith v. Young, 62 111. 
 210. 
 
 Kansas. — Costigan v. Stewart, 76 
 Kan. 353, 91 Pac. 83, 11 L.R.A.(N.S.) 
 630. 
 
§ 584J 
 
 IJENS GENEEALLY. 
 
 981 
 
 or assignment, for the amount agreed upon. The contract, 
 however, must be a valid one.^' But a mere executory agreement 
 to the effect that an attorney shall share in the recovery, is not 
 sufficient to create an equitable interest either by way of lien or 
 assignment.^ Nor will a verbal promise by a judgment creditor 
 to pay his attorney out of the proceeds of the judgment, create a 
 lien thereon.* And in some states, an attorney will not be entitled 
 to a lien in the absence of an express contract out of which an 
 equitable assignment arises.* 
 
 To Whom Lien Accrwes, 
 
 § 584. Generally. — A charging lien for professional services 
 can only be enforced on behalf of a lawyer.* One who has not 
 been admitted to practice as an attorney at law is not entitled to 
 
 Maryland. — Gothenburg Svea As- 
 sur. Co. V. Packham, 92 Md. 464. 48 
 Atl. 359, 52 L.R.A. 95. 
 
 Michigan. — Wells v. Elsam, 40 
 Mich. 218; Grand Rapids & I. R. 
 Co. V. Cheboygan Circuit Judge, 161 
 Mich. 181, 126 N. W. 56, 137 Am. St. 
 Rep. 495, 17 Detroit Leg. N. 270; 
 Foley V. Grand Rapids & I. R. Co., 
 168 Mich. 496, 134 N. W. 446. 
 
 Missouri.— Yonge v. St. Louis Tran- 
 sit Co., 109 Mo. App. 235, 84 S. W. 
 184. 
 
 Hev} Jersey. — Wilson v. Seeber, 72 
 N. J. Eq. 523, 66 Atl. 909. 
 
 "New York. — Harwood v. LaGrange, 
 137 N. Y. 538, 32 N. E. 1000; Ferris 
 V. Lawrene, 138 App. Div. 541, 123 
 N. Y. S. 209; Whitehead v. O'Sulli- 
 van, 12 Misc. 577, 33 N. Y. S. 1098; 
 Kennedy v. Steele, 35 Misc. 105, 71 
 N. Y. S. 237; Stewart v. Fleck, 43 
 Hun 636 mem., 6 N. Y. St. Rep. 524. 
 
 Wisconsin. — Stanley v. Bouck, 107 
 Wis. 225, 83 N. W. 298. 
 
 20 Weeks v. Wayne Circuit Judges, 
 73 Mich. 256, 41 N. W. 269; Drei- 
 
 band v. Candler, 166 Mich. 49, 131 
 N. W. 129; Wright v. Wright, 70 
 N. Y. 98. And see Williams v. In- 
 gersoll, 89 N. Y. 508. 
 
 21 Davis V. Sharron, 15 B. Mon. 
 (Ky.) 64. 
 
 iTrist V. Child, 21 Wall. 441, 22 
 U. S. (L. ed.) 623, and Porter v. 
 White, 127 U. S. 235, 8 S. Ct. 3 217, 
 32 U. S. (L. ed.) 112; Boyle 17. Boyle, 
 116 Fed. 764; De Winter v. Thomas, 
 34 App. Cas. (D. C.) 80, 27 L.R.A. 
 (N.S.) 634; Newell v. West, 149 
 Mass. 520, 21 N. E. 954, distinguished 
 Jernegan v. Osborn, 155 Mass. 207, 
 29 N. E. 520; Weller v. Jersey City, 
 H. & P. St. R. Co., 68 N. J. Eq. 659, 
 6 Ann. Cas. 442, 61 Atl. 459, affirm- 
 ing 66 N. J. Eq. 11, 57 Atl. 730. 
 
 2GribbIe v. Ford, (Tenn.) 52 S. W. 
 1007. See also Tone v. Shankland, 
 110 la. 525, 81 N. W. 789. 
 
 3 Story V. Hull, 143 111. 506, 32 
 N. E. 265. 
 
 4 In re Bensel, 68 Misc. 70, 124 N. 
 Y. S. 726. 
 
982 LIE]!TS GENEEALLY. [§ 585 
 
 such a lien/ nor, indeed, can he claim compensation as a lawyer.* 
 So, a corporation, not being entitled to practice law, cannot claim 
 an attorney's lien.' Nor can an attorney claim a lien in an action 
 commenced by him without the authority of his client.' Nor will 
 the association of a licensed attorney with an unlicensed person 
 entitle both of them to a lien.' But where an attorney died, and 
 his executrix employed other counsel and carried the litigation 
 to a successful termination, no objection having been interposed 
 by the client, it was held that the executrix was entitled to a lien 
 on the judgment.^" So, where the validity of a decree declaring 
 a lien in favor of several attorneys was objected to on the ground 
 that one of such attorneys was neither a resident of the state, nor 
 attorney of record, nor a licensed attorney, it was held that the 
 decree would not be disturbed where it appeared that the non- 
 resident attorney had rendered valuable services in the case, and 
 thC' amount of the lien would not have been excessive for the 
 services of the other attorneys, against whom no objections were 
 presented.'* 
 
 § 585. Attorneys of Record. — It is well settled that a 
 charging lien may be claimed by the attorney of record,'^ and if 
 several attorneys are employed in a suit by the same party, they 
 are equally entitled to a lien for their compensation on the fruits 
 
 5 Tedrick v. Hiner, 61 111. 189. loimx. — Gibson v. Chicago, M. & 
 
 6 See supra, § 23. St. P. R. Co., 122 la. 565, 98 N. W. 
 
 7 In re Benael, 68 Misc. 70, 124 N. 474. 
 
 Y. S. 726. Kansas. — Costigan v. Stewart, 76 
 
 SMitchell V. Mitchell, 143 App. Kan. 353, 91 Pac. 83, 11 L.K.A.(N S.) 
 
 Div. 172, 127 N. Y. S. 1065. 630. 
 
 And see supra, §§ 246-249, as to Kentucky. — Eowe v. Fogle, 88 Ky. 
 
 an attorney's authority in conduct- 105, 10 S. W. 426, 2 L.E.A. 708; Har- 
 
 ing litigation generally. Ian v. Bennett, 127 Ky. 572, 106 S. 
 
 9 Hittson V. Browne, 3 Colo. 304. W. 287, 128 Am. St. Eep. 360, 32 Ky. 
 
 10 Dodge V. Schell, 12 Fed. 515. L. Rep. 473; Brown v. Lapp, 89 S. 
 "Taylor v. Badoux, (Tenn.) 58 S. W. 304. 
 
 W. 919. Maine.— Tlo-we v. Klein, 89 Me. 376, 
 
 12 United States.— McDougaW v. 36 Atl. 620. 
 
 Hazelton Tripod Boiler Co., 88 Fed. Miohiga/n. — Voigt Brewery Co. v. 
 
 217, 60 U. S. App. 209, 31 0. C. A. Donovan, 103 Mich. 190, 61 N. W. 
 
 487. 343. 
 
g 586] LIENS GENEEALLY. 983 
 
 of the litigation.'' Nor is such right to a lien affected by the 
 fact that the suit was commenced by other counsel/* or that the 
 lien claimant was styled upon the record merely as "of counsel," 
 where it satisfactorily appears that he had instituted the suit, had 
 control of it at all times, and was recognized as the attorney of 
 record.'^ In some jurisdictions the right to a charging lien is 
 confined to attorneys of record.'* And so it has been said that 
 the parties to a suit having settled before the defendant's attorney 
 entered an appearance, the attorney had no lien for costs, though 
 he afterwards appeared and answered." 
 
 § 586. Associate and Assistant Counsel. — An attorney of 
 record has no power to delegate his authority to another,'', and, 
 therefore, an associate or assistant counsel employed by the origi- 
 nal attorney, without the consent of his client, is not entitled to a 
 charging lien for his services.'* Of course, where associate coun- 
 sel are employed by the client, or where the client authorizes or 
 ratifies their employment, a different question is presented; in 
 those cases, counsel so employed are entitled to a lien,^" or, in some 
 
 Mississippi. — Halsell v. Turner, 84 Colorado. — Lathrop v. Hallett, 20 
 
 Miss. 432, 36 So. 531. Colo. App. 207, 77 Pac. 1095. 
 
 ?few Bampshire. — Shapley v. Bel- loiva. — Gibson v. Chicago, M. & 
 
 lows, 4 N. H. 347. St. P. K. Co., 122 la. 565, 98 N. W. 
 
 New York. — Kennedy v. Carrick, 474. 
 
 18 Misc. 38, 40 N. Y. S. 1127. Michigan.— People v. Pack, 115 
 
 13 Massachusetts & Southern Const. Mich. 669, 74 N. W. 185, 4 Detroit 
 Co. V. Gill's Creek Tp., 48 Fed. 145. Leg. N. 1022. 
 
 14 Stratton v. Hussey, 62 Me. 286. Missouri. — Kersey v. O'Day, 173 
 l5Heavenrich v. Alpena Circuit Mo. 560, '73 S. W. 481; Smith v. 
 
 Judge, 111 Mich. 163, 69 N. W. 226; Wright, 153 Mo. App. 719, 134 S. 
 
 People V. Pack, 115 Mich. 669, 74 W. 683. 
 
 N. W. 185. New York. — Brown v. New York, 9 
 
 16 Foster v. Danforth, 59 Fed. 750; Hun 587; Phillips v. Stagg, 2 Edw. 
 
 In re Bobbins, 61 Misc. 114, 112 N. 108; Kennedy v. Carrick, 18 Misc. 
 
 Y. S. 1032, affirmed 132 App. Div. 38, 40 N. Y. S. 1127. 
 
 905, 116 N. Y. S. 1146. 20 Smith v. Wright, 153 Mo. App. 
 
 "Howard v. Biker, 11 Abb. N. 719, 134 S. W. 683; Harwood v. 
 
 Gas. (N. Y.) 113. La Grange, 137 N. Y. 538, 32 N. E. 
 
 18 See supra, § 210. 1000. 
 
 19 United States. — Foster v. Dan- 
 forth, 59 Fed. 750. 
 
984 LIENS GENEEALLY. [§ 587 
 
 instances, their fees may be included in the lien of the original 
 attorney.^ So it has been said that an attorney who, though not 
 the attorney of record, virtually had charge of the case with the 
 client's knowledge and consent, and rendered services both as an 
 attorney and as counsel, has a retaining lien, though he does not 
 have a statutory or charging lien.* In this connection it would be 
 well to consult the previous discussion of the right of associate 
 and assistant counsel to compensation generally,* the amount of 
 such compensation,* and also the treatment as to the employment 
 of associate coTmsel,^ and the right of the original attorney to 
 retain from funds in his hands a sum sufficient to pay counsel 
 employed by him as associates or assistants.* 
 
 Priority of Lien. 
 
 § 587. In General. — "He who seeks equity must do equity ;" 
 and an attorney's charging lien, which is conceded to be of an 
 equitable nature,' should not be allowed to take precedence over 
 the existing equitable claims of others.* And circumstances may 
 arise whereby, ex wquo et bono, a claim originating subsequently 
 to an attorney's contract for compensation, would be entitled to 
 take precedence thereof, as, for instance, one for money advanced 
 to carry on the litigation.® This point is well illustrated in a 
 Tennessee case wherein it appeared that "A.'s" land was sold at 
 judicial sale, and that the purchase money was paid and had 
 been applied in discharging "A.'s" debts, and that, subsequently 
 thereto, the sale was declared void, but the purchaser was given a 
 lien on the land for the amount of the purchase money, and it 
 was held that the purchaser's lien was paramount to the lien of 
 the attorney who prosecuted "A.'s" suit.^" So, an attorney who 
 has been notified of the fact that certain money, received by him 
 
 1 Louisville & N. R. Co. v. Proctor, ' See supra, § 581. 
 
 51 S. W. 591, 21 Ky. L. Rep. 447. 8 Gager v. Watson, 11 Conn. 168: 
 
 2 Harding v. Conlon, 146 App. Div. Walker v. Sargeant, 14 Vt. 247. 
 842, 131 N. Y. S. 903. 9 De Chambrun v. Cox, 60 Fed. 471, 
 
 8 See supra, §§ 407-409. 20 U. S. App. 347, 9 C. C. A. 86. 
 
 4 See supra, § 444. lo Hays v. Dalton, 5 Lea (Tenn.) 
 
 5 See supra, § 516. 555, overruling Wright v. Dufield, 2 
 eSee supra, § 476. Baxt. (Tenn.) 218. 
 
I 588] LIENS GENEEALLrY. 985 
 
 from a thief, was stolen, cannot claina a lien thereon for services 
 subsequently performed for the thief. *^ 
 
 Consideration will be given hereafter to the efficacy of an at- 
 torney's lien as against the assignments, settlement, etc., of the 
 client, and also as against the right of set-off asserted by persons 
 other than the client,^^ and to the necessity and sufficiency of 
 notice of lien as affecting the rights of third persons.^' 
 
 § 588. As against Unsecured Creditors. — An attorney's 
 charging lien, or other equitable lien in the nature thereof, takes 
 precedence over the unliquidated demands of his client's credit- 
 ors.'* And where an attorney acquired a charging lien on a stock 
 of goods which was purchased by the client on credit and thro.ugh 
 false representations, it was held that the attorney's lien had 
 precedence over the right of the seller to rescind the sale, the 
 attorney having no knowledge of the fraud.'^ Likewise, where a 
 contract with the United States government authorized the lat- 
 ter to withhold payment of part of the contract price in case of 
 failure promptly to pay laborers or materialmen, it was held 
 that, as the contractor alone, and not his creditors, could bring 
 proceedings for the distribution of the fund so withheld, his coun- 
 sel were, as against the creditors, entitled to compensation out of 
 the fund for bringing such proceedings.'* So, an attorney's lien 
 on the subject-matter of the litigation conducted by him is su- 
 perior to the rights of the plaintiff's heirs." 
 
 11 Wheeler v. King, 35 Hun (N. Y.) New York. — Pettibone v. Thomson, 
 101. See also Jeffres v. Cochrane, 47 72 Miae. 486, 130 N. Y. S. 284; Mo- 
 Barb. (iST. Y.) 657. hawk Bank v. Burrows, 6 Johns. Ch. 
 
 12 See infra, §§ 640-652. 317 ; Dunkin v. Vandenbergh, 1 Paige 
 
 13 See infra, § 601. 626; Nicoll v. Nicoll, 16 Wend. 
 1* Georgia. — McDonald v. Napier, 446, overruling 2 Edw. 574. 
 
 14 Ga. 89. Texas. — Randolph v. Randolph, 34 
 
 Florida. — Carter v. Bennett, 6 Fla. Tex. 181. 
 
 214. 16 Meyers v. Bloon, 20 Tex. Civ. 
 
 Indiana. — ^Koons v. Beach, 147 Ind. App. 554, 50 S. W. 217. 
 
 137, 45 N. E. 601, 46 N. E. 587. 16 Lawrence v. V. S., 71 Fed. 228. 
 
 Louisiana. — Compare Succession of n Porter v. Hanson, 36 Ark. 591. 
 Wells, 24 La. Ann. 162. 
 
986 LIENS GEITEEALLT. [§§ 589, 590 
 
 § 589. As against Creditors Armed with Process. — 
 
 An attorney's lien upon the judgment is superior to the claim of 
 a creditor in whose favor an execution has been levied,*' or who 
 has instituted supplementary proceedings.*' So, an attorney's 
 lien will prevail as against proceedings in attachment, garnish- 
 ment, and trustee process.'" And where a party intervenes in an 
 attachment proceeding and claims the attached property, and ulti- 
 mately obtains an order and judgment for its recovery, or the 
 value thereof, the property having in the meantime been con- 
 verted into money by order of the court, the proceeds thereof be- 
 come subject to the attorney's lien.^ 
 
 § .590. As against Secured Creditors. — A lien for attorney's 
 services relates back and takes effect from the time when such 
 services commenced,' and it will not be affected by creditors' liens 
 subsequently acquired,^ excepting in so far as such creditors may 
 have a standing in court for the purpose of attacking its validity.* 
 But liens existing prior to the commencement of the rendition of 
 services by the attorney are unaffected,* unless perhaps where 
 
 18 Henry v. Traynor, 42 Minn. 234, 16 N. E. 615; Myers v. McHugh, 16 
 
 44 N. W. 11. la. 335; Harlan v. Bennett, 127 Ky. 
 
 l9Dienst v. McCaffrey, 24 Civ. 572, 106 S. W. 287, 128 Am. St. 
 
 Proc. 238, 32 N. Y. S. 818. Rep. 360, 32 Ky. L. Kep. 473; Dam- 
 
 SOHargett v. McCadden, 107 Ga. ron v. Robertson, 12 Lea (Tenn.) 
 
 773, 33 S. E. 666; Harlan v. Ben- 372; Winchester v. Heiskell, 16 Lea 
 
 nett, 127 Ky. 572, 106 S. W. 287, (Tenn.) 556; Brown v. Bigley, 3 
 
 128 Am. St. Rep. 360, 32 Ky. L. Tenn. Ch. 618 ; Covington v. Bass, 88 
 
 Rep. 473; Leesville First Nat. Bank Tenn. 496, 12 S. W. 1033. 
 
 V. Martin, 127 La. 733, 744, 53 So. 4 Winchester v. Heiskell, 16 Lea 
 
 973, 977; Williams v. IngersolL 23 (Tenn.) 556. 
 
 Hun (N. Y.) 284; Hutchinson v. ^ United States. — ^Finance Co. of 
 
 Howard, 15 Vt. 544; Weed Sewing Pennsylvania v. Charleston, C. & C. 
 
 Maeh. Co. v. Boutelle, 56 Vt. 570, 48 R. Co., 52 Fed. 678. 
 
 Am. Rep. 821; Parker v. Parker, 71 Colorado. — Teller v. Hill, 18 Colo. 
 
 Vt. 387, 45 Atl. 756. App. 509, 72 Pac. 811. 
 
 iNoftzger v. Moffett, 63 Kan. 354, District of Columbia. — Van Ris- 
 
 65 Pac. 670. wick v. Lamon, 2 MacArthur 172. 
 
 « Harlan v. Bennett, 127 Ky. 572, loica. — Des Moines Gas Co. v. West, 
 
 106 S. W. 287, 128 Am. St. Rep. 360, 50 la. 16; Atlee v. Bullard, 123 la. 
 
 32 Ky. L. Rep. 473. 274, 98 K W. 889. 
 
 S Justice V. Justice, 115 Ind. 201, Kentucky. — Montgomery v. Garr, 
 
§§ 591, 592] LIENS GENERALLY. 987 
 
 the attorney's services have worked to the advantage of the prior 
 lien holder ; ° but if the prior lien does not extend to rents and 
 profits, the attorney's lien will attach thereto.' So, where a plain- 
 tiff recovers judgment upon condition that he pay a certain sum 
 to the defendant, the charging lien of the plaintiff's attorney will 
 attach only to the surplus remaining after deducting the amount 
 which must be paid to the defendant.' 
 
 § 591. Rule in Georgia. — In Georgia it is provided by 
 statute that attorneys at law shall have a lien upon suits, judg- 
 ments, and decrees for money, and also upon all suits for the 
 recovery of real or personal property, and upon all judgments 
 or decrees for the recovery thereof, which shall be superior to all 
 liens excepting those for taxes.' 
 
 Services and Compensation for Which Lien Exists. 
 
 § 592. Taxable Costs. — In several jurisdictions compensa- 
 tion of counsel was formerly confined to the taxable costs,'" and 
 an attorney was only entitled to a charging lien for the amount 
 of these costs,*' excepting where he entered into a special agree- 
 
 Scott & Co., 37 S. W. 580, 18 Ky. 7 Wright «. Dufield, 2 Baxt (Teim.) 
 
 L. Rep. 607; Morton v. Hallam, 12 218. 
 
 S. W. 187, 11 Ky. L. Rep. 447; Mc- 8 Blackburn v. Clarke, 85 Tenn. 
 
 Afee V. Rurrack, 1 Ky. L. Rep. 347. 506, 3 S. W. 505. 
 
 New York. — Gates v. De La Mare, 9 Code of Georgia (1911), Vol. 1, 
 
 142 N. Y. 307, 37 N. E. 121, revers- 3384, pars. 2, 3. See also Morrison 
 
 ing 66 Hun 626 mem., 20 N. Y. S. "■ Ponder, 45 Ga. 167; Walton v. 
 
 837 ; Farmers' Loan & Trust Co. v. Little, 50 Ga. 599 ; O'Brien v. Wbite- 
 
 Westchester County Water Works ^^^^' ^^ ^^- '^^1- 
 
 Co., 143 App. Div. 78, 127 N. Y. S. " ^^^ ««P™' § 4^5. 
 
 ggg 11 United States. — ^Massachusetts & 
 
 m„ „ T,- T la Southern Const. Co. v. Gills' Creek 
 
 Tennessee. — Pierce v. Lawrence, 16 _ ,„ v, , - . 
 
 T ,r^n , p, xrr „^^ Tp., 48 Fed. 145. 
 
 Lea 572, 1 S. W. 204. ' .... _ ^^ , , „ , 
 
 „ ' ^ , „ , ~- c. Gahfornia.—Ex p. Kyle, 1 Cal. 
 
 Texas.-U^ley v. Hancock, 77 S. 33^ Mansfield v. Borland, 2 Cal. 
 
 W. 658. 507 
 
 West Virgima.-SchmeTtz v. Ham- Illinois. -Vorsjthe v. Beveridge, 52 
 
 mond, 61 W. Va. 408, 41 S. E. 184. m. 268, 4 Am. Rep. 612. 
 
 6 Osborne v. Dunham, (N. J.) 16 J/airee.— Hooper v. Brundage, 22 
 
 Atl. 231; Second Street. 1 Del. Co. Me. 460; Newbert v. Cunningham, 50 
 
 Rep. (Pa.) 413. Me. 231, 79 Am. Dec. 612. 
 
988 
 
 LIENS GENERAILY. 
 
 [§ 593 
 
 ment with his client for a stipulated sum.** This was, to a cer- 
 tain extent at least, in accordance with the English practice in 
 so far as it related to the compensation of legal practitioners below 
 the grade of counsel ; '^ it will be recalled that counsel, under the 
 English law, were not entitled to claim compensation for their 
 services.'* At the present day, however, attorneys' fees are not 
 confined to the taxable costs, nor are their liens so limited, in this 
 country.'* 
 
 § 593. Compensation, Disbursements and Expenses. — 
 
 Though the old rule seems to obtain in Massachusetts and perhaps 
 in other jurisdictions,'® an attorney's charging lien is now ordi- 
 narily held to extend not only to the amount of his taxable 
 costs, if any, but also to the compensation, disbursements,''' and 
 
 Massachusetts. — Ocean Ins. Co. v. 
 Rider, 22 Pick. 210. And see Blaise 
 V. Corcoran, 211 Mass. 406, 97 N. 
 E. 1002. 
 
 New Hampshire. — Shapley v. Bel- 
 lows, 4 N. H. 347; Wright v. Cob- 
 leigh, 21 N. H. 339; Currier v. Bos- 
 ton & M. R. R. Co., 37 N. H. 223; 
 Wells V. Hatch, 43 N. H. 246; Eowe 
 V. Langley, 49 N. H. 395; Whitcomb 
 V. Straw, 62 N. H. 650. 
 
 New Jersey. — Holmes' Ex'rs v. Sin- 
 nickson's Devisees, 15 N. J. L. 313. 
 
 New York. — Oliwell v. Verdenhal- 
 ven, 17 Civ. Proc. 362, 7 N. Y. S. 
 99; Phillips V. Stagg, 2 Edw. 108; 
 Haight V. Holcomb, 16 How. Pr. 173; 
 Richardson v. Brooklyn City & New- 
 ton R. Co., 24 How. Pr. 321, 15 Abb. 
 Pr. 342 note; People v. Hardenbergh, 
 8 Johns. 335; Lesher v. Roessner, 5 
 Thomp. & C. 674; Rooney v. Second 
 Ave. R. Co., 18 N. Y. 368. 
 
 Rhode Island. — ^Horton v. Cham- 
 plain, 12 R. I. 550, 34 Am. Rep. 722; 
 Tyler v. Superior Court, 30 R. I. 
 107, 73 Atl. 467, 23 L.R.A.(>f.S.) 
 1045. 
 
 Teaeas. — Fowler v. Morrill, 8 Tex. 
 153; Casey v. March, 30 Tex. 180. 
 
 Vermont. — Heartt v. Chipman, 2 
 Aikens 162; Walker v. Sargeant, 14 
 Vt. 247. 
 
 wStahl V. Wadsworth, 13 Civ. 
 Proc. 32, 10 N. Y. St. Rep. 228; 
 Richardson v. Brooklyn City & New- 
 ton E. Co., 15 Abb. Pr. (N. Y.) 342 
 note; Turno v. Parks, 2 How. Pr. 
 N. S. (N. Y.) 35. 
 
 And see also supra, § 583. 
 
 18 England. — ^Wilkins v. Carmieh- 
 ael, 1 Dougl. 101; Welsh v. Hole, 1 
 Dougl. 238; Barker v. St. Quintin, 
 12 M. & W. 441. 
 
 1* See supra, % 401. 
 
 16 See the following section. 
 
 16 Blake v. Corcoran, 211 Mass. 
 406, 97 N. E. 1002. 
 
 17 United States. — In re Wilson, 12 
 Fed. 235; Massachusetts & Southern 
 Const. Co. V. Gill's Creek Tp., 48 
 Fed. 145 ; Poster v. Danforth, 59 Fed. 
 750. 
 
 Alabama. — Warfield v. Campbell, 
 38 Ala. 527, 82 Am. Deo. 724. 
 Colorado. — Fillmore v. WelU, 10 
 
§ 594] 
 
 LIENS GENEEAIXT. 
 
 989 
 
 expenses " actually due him " for professional services ^^ in the 
 cause or proceeding in which such services were rendered,' or in 
 any other matter, cause, or proceeding, which is so connected there- 
 with as to, for practical purposes at least, form a part thereof ; ^ 
 but not beyond this.' And where the amount of the attorney's com- 
 pensation has not been agreed upon, he will be entitled to a lien 
 for the reasonable value of his services.* 
 
 § 594. Compensation Due in Particular Suit or Proceed- 
 ing. — An attorney's right to a charging lien rests solely upon the 
 ground of security for his compensation for services rendered in 
 procuring the judgment, fund, or other property, to which the 
 lien attaches, and it cannot, in the absence of statutory authority, 
 be extended beyond such services,' and those necessarily connected 
 
 Colo. 228, 15 Pac. 343, 3 Am. St. 
 Rep. 567; Johnson v. McMillan, 13 
 Colo. 423, 22 Pac. 769. 
 
 Veto York. — Ackerman v. Acker- 
 man, 11 Abb. Pr. 256; Grotty v. 
 MacKenzie, 52 How. Pr. 54; Albert 
 Palmer Co. v. Van Orden, 64 How. 
 Pr. 79, 49 Super. Ct. 89, 4 Civ. Proe. 
 44; Rooney v. Second Ave. R. Co., 
 18 N. Y. 368; Marshall v. Meech, 51 
 N. Y. 140, 10 Am. Rep. 572; Wright 
 V. Wright, 70 N. Y. 98; Anderson v. 
 E. de Braekeleer & Co., 25 Misc. 343, 
 28 Civ. Proc. 306, 55 N. Y. S. 721; 
 Wheaton v. Newcombe, 48 Super. 
 Ct. 215. 
 
 Vermont. — Weed Sewing Mach. Co. 
 V. Boutelle, 56 Vt. 570, 48 Am. Rep. 
 821. 
 
 18 MoDougall V. Hazelton Tripod 
 Boiler Co., 88 Fed. 217, 60 U. S. 
 App. 209, 31 C. C. A. 487; Cooly v. 
 Patterson, 52 Me. 472; Heartt v. 
 Chipman, 2 Aikens (Vt.) 162. 
 
 ISMcCabe v. Britton, 79 Ind. 224; 
 Robinson v. Hawes, 56 Mich. 135, 22 
 N. W. 222; Rooney v. Second Ave. 
 R. Co., 18 N. Y. 368. 
 
 80 See infra, § 596. 
 iSee infra, § 594. 
 
 2 See infra, § 594. 
 
 3 In re Wilson, 12 Fed. 235 ; Massa- 
 chusetts & Southern Const. Co. v. 
 Gill's Creek Tp., 48 Fed. 145; Hooper 
 V. Brundage, 22 Me. 460. 
 
 4 Crowley v. Le Due, 21 Minn. 412, 
 distinguishing Forbush v. Leonard, 8 
 Minn. 303; Grotty v. McKenzie, 42 
 Super. Ct. (N. Y.) 192. 
 
 5 United States. — Wolfe v. Lewis, 
 19 How. 280, 15 U. S. (L. ed.) 643; 
 In re Wilson, 12 Fed. 235, 26 Alb. L. 
 J. 271; Massachusetts & Southern 
 Const. Co. V. Gill's Creek Tp., 48 
 Fed. 145; Foster v. Danforth, 59 
 Fed. 750; McDougall ©. Hazelton 
 Tripod-Boiler, 88 Fed. 217, 60 U. S. 
 App. 209, 31 C. C. A. 487. 
 
 Alabama. — Warfield v. Gampbell, 
 38 Ala. 527, 82 Am. Dec. 724; Mc- 
 Williams v. Jenkins, 72 Ala. 480; 
 Higley v. White, 102 Ala. 604, 15 
 So. 141. 
 
 Arkansas. — Waters v. Grace, 23 
 Ark. 118; Davis v. Webber, 66 Ark. 
 
990 
 
 LIENS GENEEALIiY. 
 
 [§ 595 
 
 therewith.' It does not extend to a claim for a general balance 
 due for professional services in other cases.'' In some jurisdic- 
 tions, however, it is expressly provided by statute that a charging 
 lien shall cover any balance due the attorney for professional 
 services.' It applies solely to the personal relation between the 
 attorney and his client, and may not be extended to or affect the 
 rights of third persons who may be interested in the litigation, 
 but who have not employed such attorney.' 
 
 § 595. Incidental Services. — The attorney's charging lien 
 also covers all such professional services as are incidental to the 
 progress of the litigation in which he has been employed,^" or 
 which are covered by his retainer,*^ and it may include compen- 
 sation for services rendered in any other case which is so connected 
 with such litigation as to be, practically, a part thereof.** It is 
 immaterial that some of the services may have been rendered in 
 
 190, 49 S. W. 822, 74 Am. St. Rep. 
 81, 45 L.R.A. 196. 
 
 Connecticut. — Sloan v. Smith, 77 
 Conn. 713 mem., 58 Atl. 712. 
 
 ■Oeorgia. — McDonald v. Napier, 14 
 Ga. 89. 
 
 Maine. — Hooper, v. Brundage, 22 
 Me. 460; Prince v. Fuller, 34 Me. 122. 
 
 Minnesota. — Forbush v. Lconar4, 8 
 Minn. 303. 
 
 Mississippi. — Harney v. Demosa, 3 
 How. 174; Dunn V. Vannerson, 7 
 How. 579; Pope v. Armstrong, 3 
 Smedes & M. 214; Cage v. Wilkin- 
 son, 3 Smedes & M. 223; Stewart v. 
 Flowers, 44 Miss. 513, 7 Am. Rep. 
 707; Halsell v. Turner, 84 Miss. 432, 
 36 So. 531. 
 
 New Hampshire. — Shapley v. Bel- 
 lows, 4 N. H. 347. Compare Wells 
 V. Hatch, 43 N. H. 246. 
 
 Neto York. — Adams v. Fox, 40 
 Barb. 442; Bowling Green Sav. Bank 
 V. Todd, 64 Barb. 146; Brown v. New 
 York, 11 Hun 21; Anderson v. E. de 
 xsraekeleer, 25 Misc. 343, 28 Civ. 
 
 Proe. 306, 55 N. Y. S. 721; Leask v. 
 Hoagland, 64 Misc. 156, 118 N. Y. 
 S. 1035. 
 
 Pennsylvania. — In re Aber, 18 Pa. 
 Super. Ct. 110. 
 
 West Virginia. — Renick v. Luding- 
 ton, 16 W. Va. 378; Hazeltine v. 
 Kecnan, 54 W. Va. 600, 46 S. E. 609, 
 102 Am. St. Rep. 953. 
 
 6 See the following section. 
 
 T Pope V. Armstrong, 3 Smedes & 
 M. (Miss.) 214. 
 
 8 Fillmore v. Wells, 10 Colo. 228, 
 15 Pac. 343, 3 Am. St. Rep. 567; 
 Hubbard v. Ellithorpe, 135 la. 259, 
 112 N. W. 796, 124 Am. St. Rep. 271. 
 
 9 In re Gillaspie, 190 Fed. 88. 
 "Ward V. Craig, 87 N. Y. 550; 
 
 Canary v. Russell, 10 Misc. 597, 24 
 Civ. Proc. 109, 31 N. Y. S. 291. 
 
 "In re Paschal, 10 Wall. 483, 19 
 U. S. (L. ed.) 992. 
 
 12 Renick v. Ludington, 16 W. Va. 
 378; Fowler v. Lewis' Adm'r, 36 W. 
 Va. 112, 14 S. E. 447. 
 
§ 596] LIENS GENEEALLY. 991 
 
 another court, '* or by other attorneys.'* Thus where, in pursuance 
 of an agreement, an attorney attended a number of cases for the 
 purpose of attaining a single end, it was held that a judgment 
 recovered in one of such cases was subject to the attorney's charg- 
 ing lien for the services rendered in all of them.'^ So, a charging 
 lien will extend to any suit arising from and incidental to the 
 enforcement of a judgment to which it has attached.'" And where 
 a client died before judgment, the attorney's charging lien will 
 cover such services as are subsequently rendered in the suit for 
 an administrator who has undertaken to prosecute it.'^ But the 
 mere fact that several suits are connected, and relate to the same 
 matter, is not sufficient to subject a judgment recovered in any 
 one of them, to a lien for services rendered in the others. '° Where, 
 however, the statute gives a lien from the commencement of an 
 action there is no lien for incidental services in anticipation of 
 an action never begun.'* 
 
 § 596. Nature of Services and for Whom Rendered. — 
 
 A charging lien can accrue only for professional services ; ^^ the 
 fact that services, not of a professional character, were rendered 
 by an attorney is not sufficient.' But where the attorney's em- 
 ployment is not questioned, his right to a charging lien will 
 not be affected by the fact that the services were rendered 
 in the interest of minors,* married women,' executors and adminis- 
 
 13 Weaver v. Cooper, 73 Ala. r.l8; Brown v. New York, 11 Hun (N. Y.) 
 Gibson v. Chicago, M. & St. P. K. 21. 
 
 Co., 122 la. 565, 98 N. W. 474. iSMillis v. Pentelow, 92 Hun 284, 
 
 14 Gibson v. Chicago, M. & St. P. 36 N. Y. S. 906. 
 
 R. Co., 122 la. 565, 98 N. W. 474. 20 Woods v. Dickinson, 18 D. C. 
 
 16 Butchers' Union Slaughter-House 301 ; Lorillard v. Barnard, 42 Hun 
 
 & Live Stock Landing Co. v. Crescent 545, 4 N. Y. St. Rep. 618. 
 
 City Live Stock Landing & Slaughter- l Holmes v. Bell, 139 App. Div. 
 
 House Co., 41 La. Ann. 355, 6 So. 455, 124 N. Y. S. 301, affirmed 200 
 
 508. N. Y. 586, 94 N. E. 1094. 
 
 iSNewbert v. Cunningham, 50 Me. 2 Sears v. Collie, 148 Ky. 444, 146 
 
 23], 79 Am. Dec. 612. S. W. 1117; Ex p. Smithson, 108 
 
 "Hurlbert v. Brigham, 56 Vt. Tenn. 442, 67 S. W. 864; Boring v. 
 
 368. Jobe, (Tenn.) 53 S. W. 763. 
 
 18 Massachusetts & Southern Const. sin re Springer, 16 Pittsb. Leg. J. 
 
 Co. ;;. Gill's Creek Tp., 48 Fed. 145; N. S. (Pa.) 363; Boring v. Jobe, 
 
 Williams v. Ingersoll, 89 N. Y. 508; (Tenn.) 53 S. W. 763. 
 
992 LIENS GENEEALLT. [§§ 597, 598 
 
 trators,* or insane persons.* So, under some statutes an attorney's 
 charging lien will accrue for services rendered in a special proceed- 
 ing,® or in proceedings before an administrative board, as, for 
 instance, a "county board," '' or in bastardy proceedings.' Where, 
 however, a local statute specifically mentions the services for which 
 a lien will accrue, it has been held, in some jurisdictions, that an 
 attorney is not entitled to a lien for services other than those speci- 
 fied in the statute.' 
 
 § 597. As to Court Wherein Services Are Rendered. — 
 
 As a rule, a charging lien will accrue only for services rendered in 
 a court of record, because courts not of record have no such equi- 
 table control over their judgments as will enable them to adjudicate 
 upon and enforce liens thereon.^" It has been held that a charg- 
 ing lien will accrue in favor of an attorney for services rendered 
 in a surrogate court,^* but not for those rendered in a municipal 
 court.'* 
 
 § 598. Services Rendered for Defendant. — A defendant's 
 attorney acquires no lien on the subject-matter of the litigation 
 merely because of his employment, and the rendition of profes- 
 sional services in pursuance thereof, even though he should suc- 
 cessfully resist the plaintiff's demands ; *^ but, in most jurisdic- 
 
 * Matter of Scherer, 111 App. Div. (N. Y.) 60. And see McCaa «. Grant, 
 
 23, 35 Civ. Proe. 314, 97 N. Y. S. 43 Ala. 262. 
 
 171. "In re Regan, 167 N. Y. 338, 60 
 
 Sin re Stenton, 53 Misc. 515, 105 N. E. 658, reversing 58 App. Div. 1, 
 
 N. Y. S. 295. 31 Civ. Proc. 387, 68 N. Y. S. 527. 
 
 6 New York Judiciary Law, § 475. iZDrago v. Smith, 92 Hun 536, 36 
 
 ■? Maloney v. Douglas County, 2 N. Y. S. 975 ; People v. Fitzpatrick, 
 
 Neb. (unofficial) Rep. 396, 89 N. W. 35 Misc. 456, 71 N. Y. S. 191. See, 
 
 248; Perry v. Myer, 89 N. Y. S. 347. however, Tynan v. Mart, 53 Misc. 49, 
 
 SBickford r. Ellis, 50 Me. 121; 103 N. Y. S. 1033. 
 
 Taylor v. StuU, 79 Neb. 295, 112 N. ^i Kentucky. — Wilson v. House, 10 
 
 W. 577. Bush 406; Forrester v. Howard, 124 
 
 SRodgers v. Hamilton, 49 Ga. 604; Ky. 215, 98 S. W. 984, 124 Am. St. 
 
 Haygood v. Dannenberg Co., 102 Ga. Rep. 394, 30 Ky. L. Rep. 375; Har- 
 
 24, 29 S. E. 293. Ian i. Bennett, 127 Ky. 572, 106 S. 
 10 Flint V. Van Dusen, 26 Hun W. 287, 128 Am. St. Kep. 360, 32 Ky. 
 
 (N. Y.) 606; Read v. Joselyn, Sheld. L. Rep. 473; Thompson v. Thompson, 
 
§ 599] 
 
 LIENS GENEEALLT. 
 
 993 
 
 tions, the defendant's attorney is entitled to a charging lien where 
 he successfully establishes a counterclaim, or procures other affirm- 
 ative relief, to the fruits of which the lien may attach,^* and this 
 lien has been held to attach to a judgment for costs in favor of 
 the defendant, though no counterclaim was asserted in the answer.^' 
 And, under a Kentucky statute, it has been held that the word 
 "action" embraces a demand for a set-off or counterclaim.'® But 
 a claim, set up by a defendant, which only goes toward reducing 
 the amount of the plaintiff's recovery, is not a counterclaim as to 
 which a lien may be acquired." Thus, an attorney for an admin- 
 istrator who, on the accounting, has defeated a claim to the effect 
 that certain property belonged to the estate, is not entitled to a 
 lien for his services." 
 
 § 599. Extent of Retaining Lien. — A retaining lien," con- 
 trary to the principles stated in the preceding sections of this 
 
 65 S. W. 457, 23 Ky. L. Rep. 1535; 
 Lytle -0. Bach, 93 S. W. 608, 29 Ky. 
 L. Rep. 424. 
 
 Weio York. — Minto v. Baur, 17 Civ. 
 Proc. 314, 6 N. Y. S. 444; Levis li. 
 Burlce, 51 Hun 71 mem., 3 N. Y. S. 
 386 ; Longyear v. Carter, 88 Hun 513, 
 2 N. Y. Ann. Gas. 192, 34 N. Y. S. 
 785; White v. Sumner, 16 App. Div. 
 70, 44 N. Y. S. 692; Saranac & Lake 
 Placid R. Co. v. Arnold, 37 Miac. 514, 
 75 N. Y. S. 1003, affirmed 72 App. 
 Div. 620, 76 N. Y. S. 1032; Fromme 
 V. Union Surety & Guaranty Co., 39 
 Misc. 105, 78 N. Y. S. 895. 
 
 Oregon. — Ford v. Gilbert, 44 Ore. 
 259, 75 Pac. 138. 
 
 Tennessee. — Garner v. Garner, 1 
 Lea 29; Sharp v. Fields, 5 Lea 326; 
 In re New Memphis Gaslight Co., 
 105 Tenn. 268, 60 S. W. 206, 80 Am. 
 St. Rep. 880; Pate v. Maples, 43 S. 
 W. 740. 
 
 West Virginia. — Fowler v. Lewis' 
 Adm'r, 36 W. Va. 112, 14 S. E. 447. 
 
 Wisconsin. — Garvin v. Crowley, 116 
 Wis. 496, 93 N. W. 470. 
 
 Attys. at L. Vol. II.— 63. 
 
 "Fry V. Calder, 74 Ga. 7; New 
 York Judiciary Law, § 475. See also 
 Bevins v. Albro, 86 Hun 590, 33 N. 
 Y. S. 1079; White v. Sumner, 16 
 App. Div. 70, 44 N. Y. S. 692; In 
 re Opening of Lexington Ave., 30 
 App. Div. 602, 52 N. Y. S. 203, af- 
 firmed 157 N. Y. 678, 51 N. E. 1092; 
 Horn V. Horn, 115 App. Div. 292, 
 100 N. Y. S. 790; Grossman v. Smith, 
 116 App. Div. 791, 102 N. Y. S. 18; 
 Gildersleeve v. Reitz, 80 Misc. 685, 
 142 N. Y. S. 674. 
 
 IS Agricultural Ins. Co. v. Smith, 
 112 App. Div. 840, 35 Civ. Proc. 338, 
 98 N. Y. S. 347. 
 
 18 Harlan v. Bennett, 127 Ky. 572, 
 106 S. W. 287, 128 Am. St. Rep. 360, 
 32 Ky. L. Rep. 473. 
 
 "Plerson v. Safford, 30 Hun (N. 
 Y.) 521. 
 
 18 In re Robinson, 125 App. Div. 
 424, 109 N. Y. S. 827, affirmed 192 
 N. Y. 574, 85 N. E. 1115. 
 
 19 See supra, § 573. 
 
994 
 
 LIENS GENERALLY. 
 
 [§ 599 
 
 subdivision, covers not only such compensation as may be due for 
 services rendered in connection with the property in the possession 
 of the attorney, and to which the lien has attached, but also extends 
 so as to secure the payment of any general balance due the attorney 
 for professional services.^" Thus, an attorney who was regularly 
 employed at a fixed salary, may have a retaining lien, upon the 
 papers of the client, for the full amount of his salary which is un- 
 paid.^ So, where a judgment is assigned to counsel as security for 
 fees and expenses, his lien covers services rendered in the collec- 
 tion of the judgment, as well as those in obtaining it.^ Hot is the 
 attorney's right to a retaining lien affected by the fact that his 
 services were rendered at the request of an agent,' or an executor.* 
 
 io England. — Bozon v. Bolland, 4 
 Myl. & C. 354. 
 
 United States. — In re Paschal, 10 
 Wall. 483, 19 U. S. (L. ed.) 992; 
 In re Wilson, 12 Fed. 235; Foster v. 
 Danforth, 59 Fed. 750. 
 
 District of Columbia. — Meloy v. 
 Meloy, 24 App. Caa. 239. 
 
 Louisiana. — B u t c h e,r s' Union 
 Slaughter-House & Live Stock Land- 
 ing Co. V. Crescent City Live Stock 
 Landing & Slaughter-House Co., 41 
 La. Ann. 355, 6 So. 508. 
 
 Michigan. — Kobinson v. Hawes, 56 
 Mich. 135, 22 N. W. 222. 
 
 Minnesota. — Washington County v. 
 Clapp, 83 Minn. 512, 86 N. W. 775. 
 
 Mississippi. — Stewart v. Flowers, 
 44 Miss. 513, 7 Am. Rep. 707. 
 
 Nebraska. — Cones v. Brooks, 60 
 Neb. 698, 84 N. W. 85. 
 
 New Hampshire. — Dennett v. Ciitts, 
 11 N. H. 163; Wright v. Cobleigh, 
 21 N. H. 339. 
 
 New York. — Adams v. Fox, 40 
 Barb. 442; Bowling Green Sav. Bank 
 V. Todd, 52 N. Y. 489; Matter of 
 H., 87 N. Y. 521; Ward v. Craig, 87 
 N. Y. 550; Schwartz v. Jenney, 21 
 Hun 33; Lorillard v. Barnard, 42 
 
 Hun 545, 4 N. Y. St. Rep. 618; Krone 
 V. Klotz, 3 App. Div. 587, 25 Civ. 
 Proc. 320, 3 N. Y. Ann. Cas. 36, 38 
 N. Y. S. 225; Arkenburgh v. Little, 
 49 App. Div. 636, 64 N. Y. S. 742, 
 affirmed 176 N. Y. 551, 68 N. E. 1114; 
 Mathot V. Triebel, 98 App. Div. 328, 
 90 N. Y. S. 903. 
 
 Tennessee. — McDonald v. Charles- 
 ton, C. & C. K. Co., 93 Tenn. 281, 24 
 S. W. 252. 
 
 Vermont. — Hutchinson v. Howard, 
 15 Vt. 544; Weed Sewing Mach. Co. 
 V. Boutelle, 56 Vt. 570, 48 Am. Rep. 
 821. 
 
 1 Finance Co. of Pennsylvania v. 
 Charleston, C. & C. R. Co., 46 Fed. 
 426; Finance Co. of Pennsylvania v. 
 Charleston C. & C. R. Co., 52 Fed. 526. 
 
 2 Com. «. Terry, 11 Pa. Super. Ct. 
 547. 
 
 3 Jackson v. Erkina, 131 App. Div. 
 801, 116 N. Y. S. 385. 
 
 4 Meloy V. Meloy, 24 App. Cas. (D. 
 C.) 239; Matter of Seherer, 111 App. 
 Div. 23, 35 Civ. Proc. 314, 97 N. Y. 
 S. 171; In re Ross, 123 App. Div. 
 74, 107 N. Y. S. 899; Arkenburgh v. 
 Arkenburgh, 27 Misc. 760, 59 N. Y. 
 S. 612, affirmed 49 App. Div. 636 
 
600] 
 
 LIENS GENERALLY. 
 
 995 
 
 But the attorney's lien on property in his possession extends only 
 to his client's interest therein.' 
 
 Notice of Lien. 
 
 § 600. Necessity of Notice. — In the ahsence of statutory 
 authority to the contrary, it is essential that an attorney should 
 give to the opposite party, and such other persons as may be 
 affected, notice of the fact that he claims a lien for his services, 
 in order to protect himself against settlement by the parties,* or 
 an assignment of the judgment or other property involved,' or at- 
 tachments or ga,rnishment proceedings.* And when notice has 
 
 mem., 64 N. Y. S. 742, 176 N. Y. 
 551, 68 N. E. 1114; Hurlbert v. 
 Brigham, 56 Vt. 368. 
 
 5 Jackson v. American Cigar Box 
 Co., 141 App. Div. 195. 126 N. Y. S. 
 58. 
 
 6 United States. — ^Kern v. Chii-ago, 
 M. & P. S. R. Co., 201 Fed. 404. 
 
 Colorado. — Boston & Colorado 
 Smelting Co. v. Pless, 9 Colo. 112, 10 
 Pac. 652; Johnson v. McMillan, 13 
 Colo. 423, 22 Pac. 769; State Bank 
 V. Davidson, 7 Colo. App. 91, 42 Pac. 
 687; Teller v. Hill, 18 Colo. App. 
 509, 72 Pac. 811. 
 
 Connecticut. — Andrews v. Morse, 12 
 Conn. 444, 31 Am. Dec. 752. 
 
 District of Columbia. — Bendheim 
 V. Pickford, 31 App. Cas. 488. 
 
 Indiana. — Koons v. Beach, 147 Ind. 
 137, 45 N. E. 601,, 46 N. E. 387. 
 
 Iowa. — Casar v. Sargeant, 7 la. 
 317; Hurst v. Sheets, 21 la. 501. 
 
 Nebraska. — Cobbey v. Dorland, 50 
 Neb. 373, 69 N. W. 957; Cones v. 
 Brooks, 60 Neb. 698, 84 N. W. 85. 
 
 Neio Hampshire. — Grant v. Hazel- 
 tine, 2 N. H. 541. 
 
 New Jersey. — Barnes v. Taylor, 30 
 N. J. Eq. 467; Braden v. Ward, 42 
 N. J. L. 518. 
 
 Oregon. — Day v. Larsen, 30 Ore. 
 247, 47 Pac. 101; Stoddard V. Lord, 
 36 Ore. 412, 59 Pac. 710; Stearns 
 V. WoUenberg, 51 Ore. 88, 92 Pac. 
 1079, 14 L.E.A.(N.S.) 1095; Wagner 
 V. Goldschmidt, 51 Ore. 63, 93 Pac. 
 689. 
 
 South Dakota. — Howard v. Ward, 
 139 N. W. 771. 
 
 Fermomf.-^Heartt v. Chipman, 2 
 Aikens 362; Hooper v. Welch, 43 Vt. 
 169, 5 Am. Rep. 267; Manning v. 
 Leighton, 65 Vt. 84, 26 Atl.- 258, 24 
 L.R.A. 684. 
 
 West Virginia. — Eenick v. Luding- 
 ton, 16 W. Va. 378; Bent v. Lips- 
 comb, 45 W. Va. 183, 31 S. E. 907, 
 72 Am. St. Rep. 815. 
 
 Wisconsin. — Courtney v. McGa- 
 vock, 23 Wis. 619; Voell v. Kelly. 64 
 Wis. 504, 25 N. W. 536; Frei v. Mc- 
 Murdo, 101 Wis. 423, 77 N. W. 915; 
 Stanley v. Bouck, 107 Wis. 225, 83 
 N. W. 298. 
 
 Canada. — De Santis v. Canadian 
 Pac. E. Co., 14 Ont. L. Rep. 108. 
 
 7 Jennings v. Bacon, 84 la. 403, 
 51 N. W. 15. Compare Renick v. 
 Lndington, 18 W. Va. 378. See also 
 in^ra, §§ 648, 649. 
 
 8 Phillips V. Germon, 43 la. 101. 
 
996 
 
 LIENS GBNEEALLY. 
 
 [§ 600 
 
 been given, it is sufficient, as a rule, for services to be rendered 
 thereafter, as well as those which have been rendered.' In some 
 jurisdictions, however, an attorney's charging lien is effective 
 without notice ; ^^ and in others, notice is required only as against 
 third persons.^* But even in those jurisdictions, it seems that 
 notice of lien is necessary where the lien asserted is not provided 
 for by the statute.^^ Questions of the character under discussion, 
 depending as they do, in most instances, on local statutes, which 
 are frequently amended to meet existing conditions, can only be 
 satisfactorily disposed of by an examination of the state laws under 
 which the lien is claimed. It is essential, of course, that the statu- 
 
 Compare Hutchinson v. Howard, 15 
 Vt. 544; Weed Sewing Mach. Co. v. 
 Boutelle, 56 Vt. 570, 48 Am. Rep. 
 821. See also supra, § 589. 
 
 9 Smith V. Chicago, R. I. & P. R. 
 Co., 56 la. 720, 10 N. W. 244. See 
 also In re Bailey, 4 Civ. Proc. ( N . Y. ) 
 140. 
 
 10 Georgia. — Burgin & Sons Glass 
 Co. V. Mclntire, 7 Ga. !App. 755. 68 
 S. E. 490. 
 
 But not before process or other 
 notice of suit. Lumpkin v. Louis- 
 ville & N. R. Co., 136 Ga. 135, 70 S. 
 E. 1101. 
 
 Kentucky. — Tyler v. Slemp, 90 S. 
 W. 1041, 28 Ky. L. Rep. 959. 
 
 Maine. — Hobson v. Watson, 34 Me. 
 20, 56 Am. Dec. 632; Newbert v. Cun- 
 ingham, 50 Me. 23] , 79 Am. Dec. 612 ; 
 McKenzie v. Wardwell, 61 Me. 136; 
 Stratton v. Hussey, 62 Me. 280. 
 
 Minnestota. — Desaman v. Butler, 
 114 Minn. 362, 131 N. W. 463. 
 
 Missouri. — See Missouri Rev. Stat. 
 (1909) § 965; Taylor v. St. Louis 
 Transit Co., 198 Mo. 715, 97 S. W. 
 155; Taylor v. St. Louis Merchants' 
 Bridge Terminal R. Co., 207 Mo. 495, 
 105 S. W. 740; Whitwell v. Aurora, 
 139 Mo. App. 597, 123 S. W. 1045. 
 
 Nem York. — Custer v. Greenpoint 
 
 Ferry Co., 98 N. Y. 660, 5 Civ. Proc. 
 146; Peri v. New York Cent. & H. 
 R. R. Co., 152 N. Y. 521, 46 N. E. 
 849; Quinlan v. Birge, 43 Hun 483, 
 7 N. Y. St. Rep. 147; Keeler v. 
 Keeler, 51 Hun 505, 4 N. Y. S. 580; 
 Agricultural Ins. Co. v. Smith, 112 
 App. Div. 840, 35 Civ. Proc. 338, 98 
 N. Y. S. 347; Webb v. Parker, 130 
 App. Div. 92, 114 N. Y. S. 489; Vroo- 
 man v. Pickering, 25 Misc. 277, 57 N. 
 Y. S. 389; Dolliver v. American Swan 
 Boat Co., 32 Misc. 264, 65 N. Y. S. 
 978; Fenwick v. Mitchell, 34 Misc. 
 017, 70 N. Y. S. 667, reversed 64 App. 
 Div. 021, 72 N. Y. S. 1102; Dimick 
 V. Cooley, 3 Civ. Proc. 141; Molough- 
 ney v. Kavanagh, 3 Civ. Proc. 253; 
 Stahl V. Wadsworth, 13 Civ. Proc. 32, 
 10 N. Y. St. Rep. 228; Kehoe v. Mil- 
 ler, 10 Abb. N. Cas. 393 note; Albert 
 Palmer Co. v. Van Orden, 64 How. 
 Pr. 79; Tullis v. Bushnell, 65 How. 
 Pr. 465; Peri v. New York Cent. & 
 H. R. R. Co., 152 N. Y. 521, 46 N. E. 
 849, affirming 12 App. Div. 625, 43 
 N. Y. S. 1162. 
 
 "Clark V. Sullivan, 3 N. D. 280, 
 55 N. W. 733. 
 
 12 Lablache v. Kirkpatrick, 8 Civ. 
 Proc. (N. Y.) 256. 
 
601] 
 
 LIENS GENEEALLY. 
 
 997 
 
 tory requirements should be complied with in all cases." It is also 
 to be observed that the requirements as to notice are intended only 
 to protect those who act in good faith ; they cannot be taken advan- 
 tage of for the purpose of shielding fraud or collusion.'* 
 
 § 601. Sufficiency of Notice Generally. — Unless required by 
 statute, no special formalities are essential in giving notice of an 
 attorney's charging lien; any actual notice, oral or written, to 
 those who are to be affected by the lien, will serve the purpose. 
 And where the character of the notice, and the manner of its 
 service, are prescribed by statute, a substantial compliance there- 
 with will, as a rule, be sufficient. '' It need not state the details 
 of the attorney's employment. '° Indeed, in some jurisdictions, 
 it has been held that the pendency of the suit or proceeding is, in 
 itself, a sufficient notice to all persons. ''' But a notice to the 
 effect that an attorney has a lien on the cause of action, as security 
 for his fees, is not sufficient to charge the defendant with notice 
 of an assignment to the attorney of an interest in the cause of 
 
 13 Nielsen v. Albert Lea, 91 Minn. 
 388, 392, 98 N. W. 195, 197; Hull v. 
 Phillips, 128 Mo. App. 247, 107 S. W. 
 21. 
 
 "Porter v. Hanson, 36 Ark. 591, 
 604. 
 
 16/oua. — Barthell v. Chicago, M. & 
 St. P. R. Co., 138 la. 688, 116 N. W. 
 813; Crosby r. Hatch, 135 N. W. 1079. 
 
 Minnesota. — Northrup v. Hayward, 
 102 Minn. 307, 12 Ann. Cas. 341, 113 
 N. W. 701. 
 
 Missouri. — Abbott v. United Rys. 
 Co., 138 Mo. App. 530, 119 S. W. 964. 
 
 Nebraska. — Cobbey v. Borland, 50 
 Neb. 373, 69 N. W. 951; Cones v. 
 Brooks, 60 Neb. 698, 84 N. W. 85; 
 Lewis li. Omaha St. E. Co., 114 N. W. 
 281. 
 
 North Dakota. — Lown v. Casselman, 
 141 N. W. 73. 
 
 Vermont. — Lake v. Ingham, 3 Vt. 
 1.58. 
 
 West Virginia. — Renick v. Luding- 
 ton, 16 W. Va. 378. 
 
 16 Chesliire v. Des Moines City Jt. 
 Co., 153 la. 88, 133 N. W. 324. 
 
 17 Georgia. — Little r. Sexton, 89 Ga. 
 411, 15 S. E. 490, distinffuishing 
 Haynes v. Perry, 76 Ga. 33. 
 
 Kentucky. — Stephens v. Farrar, 4 
 Bush 13. 
 
 Missouri. — Taylor v. St. Louis 
 Transit Co., 198 Mo. 715, 97 S. W. 
 155; Whitecotton v. St. Louis & H. R. 
 Co., 250 Mo. 624, 157 S. W. 776; 
 Laughlin v. Excelsior Powder Mfg. 
 Co., 153 Mo. App. 508, 134 S. W. ]]6. 
 
 Nebraska. — Greek v. McDaniel, 68 
 Neb. 569, 94 N. W. 518. 
 
 Tennessee. — Hunt v. McClanahan, ] 
 Heigk. 503; Vaughn v. Vaughn, 12 
 Heisk. 472; Brown v. Bigley, 3 Tenn. 
 Ch, 618. 
 
998 LIENS GENEEALLT. [§ 602 
 
 action.*' Nor will a no1;ice, by plaintiff's attorney, to the effect 
 that "a portion of whatever may be paid in suit or settlement for 
 services to be rendered" had been assigned to him, be sufficient to 
 charge the fund in the hands of the defendant.'® 
 
 § 602. Notice Presumed. — In some jurisdictions it has been 
 held that notice of an attorney's charging lien may be presumed 
 where the party to be charged therewith has knowledge of facts 
 and circumstances which, in themselves, are sufficient to put him 
 on inquiry.^" Thus, one may be presumed to have notice where 
 he knew that litigation had been commenced,^' and that an at- 
 torney had been employed in the suit,' or where his property has 
 been attached,^ or where, on the sale of land, provision is made 
 for the satisfaction of liens.* So, an attorney's lien which has been 
 perfected is sufficient notice to the judgment debtor of the at- 
 torney's claim for compensation in another action which is brought 
 for the purpose of enforcing the judgment.* And it has also 
 been held that a defendant who compromises a judgment is con- 
 clusively presumed to have known all it contained.^ But the mere 
 knowledge of an ancillary administrator that a former attorney 
 had rendered certain services, is not sufficient to charge him with 
 notice of a lien therefor.* 
 
 18 Smelker v. Chicago & N. W. E. Nev} York. — Wilkins v. Batterman, 
 Co., J 06 Wis. 135, 81 N. W. 994. 4 Barb. 47. 
 
 19 Pennsylvania Co. v. Thatcher, 78 Vermont. — Weed Sewing Mach. Co. 
 Ohio St. 175, 85 N. E. 55. v. Boutelle, 56 Vt. 570, 48 Am. Rep. 
 
 20 United States.— Ajigell v. Ben- 821. 
 
 nett, 1 Spr. 85, 1 Fed. Cas. No. 387. «l See supra, note. 
 
 Georgia. — Whittle v. Tarver, 75 Ga. l Gammon v. Chandler, 30 Me. 152. 
 
 818. 2 Zentmire v. Brailey, 89 Neb. 158, 
 
 Maine.— Stone v. Hyde, 22 Me. 318; 130 N. W. 1047. 
 
 Hobson V. Watson, 34 Me. 20, 56 Am. 8 Fry v. Calder, 74 Ga. 7. 
 
 Dec. 632. 4 Stoddard v. Lord, 36 Ore. 412, 59 
 
 Michigan. — Grand Rapids & I. R. Pac. 710. 
 
 Co. V. Cheboygan Circuit Judge, 161 6 Covington v. Bass, 88 Tenn. 496, 
 
 Mich. 181, 126 N. W. 56, 137 Am. St. 12 S. W. 1033. 
 
 Rep. 495, 17 Detroit Leg. N. 270. 6 Manning v. Leighton, 65 Vt. 84, 20 
 
 Neiu Hampshire. — Young v. Dear- Atl. 258, 24 L.R.A. 684. 
 born, 27 N. H. 324. 
 
§ 603] LIENS GENERALLY. 999 
 
 § 603. Filing or Recording of Lien. — In order to perfect 
 an attorney's charging lien it is essential, in several states, that it 
 should be filed or recorded in the proceeding,' in the court where 
 the judgment is entered ; * but under some statutes filing or record- 
 ing is necessary only after judgment.' In Georgia the filing of 
 an attorney's lien is necessary as against innocent purchasers, but 
 not as against the client and his general creditors.^" Of course, a 
 lien need not be filed where filing is not required by statute,'^ 
 and, in such case, it seems that the filing of a lien would not 
 necessarily be notice to the judgment debtor ; ^ but it may become 
 notice by proof that it was actually read by him, or by any other 
 person who might be affected thereby.*' It is usual, however, 
 for attorneys, who obtain a money or property judgment, to have 
 a lien declared on the recovery for their fees, and, where this prac- 
 tice prevails, the courts invariably recognize the right when it is 
 asked. Such practice, and its recognition, must be understood 
 to have a substantial meaning and purpose, and, to a certain ex- 
 tent, embarrass the right of the plaintiff to appropriate the recov- 
 
 "> Indiana. — Alderman u. Nelson, 111 271; Clark v. Sullivan, 3 N. D. 280, 
 
 Ind. 255, 12 N. E. 394, foUomng Day 55 N. W. 733; Hroeh v. Aultman & 
 
 r. J^owman, 109 Ind. 383, 10 N. E. Taylor Co., 3 S. D. 477, 54 N. W. 269. 
 126 ; Koona v. Beach, 147 Ind. 137, 45 10 Coleman v. Austin, 99 Ga. 629, 27 
 
 N. E. 601, 46 N. E. 587. S. E. 763; Burgin & Sons Glass Co. v. 
 
 Nebraska. — Griggs v. White, 5 Neb. Mclntire, 7 Ga. App. 755, 68 S. E. 
 
 4C7; Elliott v. Atkins, 26 Neb. 403, 490. See also Code of Georgia 
 
 42 N. W. 403. ( 1911 ) , § 3364, par. 4, which provides 
 
 Oregon. — Wagner v. Goldschmidt, that "if an attorney at law shall file, 
 
 51 Ore. 63, 93 Pac. 689. as provided in section 3353, his as- 
 
 Washington. — Wooding t'. Grain, 11 sertion claiming lien on property re- 
 Wash. 207, 39 Pac. 442; Humptulips covered on suit instituted by him. 
 Driving Co. v. Cross, 65 Wash. 636, within thirty days after a recovery 
 118 Pac. 827, 37 L.R.A.(N.S.) 226. of the same, then his lien shall bind 
 
 8 The filing of a lien notice below all persons." 
 
 does not protect against settlement in n McCain v. Portis, 42 Ark. 402. 
 
 an appellate court to which the judg- l^ Colorado State Bank v. Davidson, 
 
 ment is transferred. Wooding v. 7 Colo. App. 91, 42 Pac. 687. 
 
 Crain, 11 Wash. 207, 39 Pac. 442. 13 Davidson v. La Plata County, 26 
 
 9 Hubbard t'. Ellithorpe, 135 la. Colo. 549, 59 Pac. 46. 
 259, 112 N. W. 796, 124 Am. St. Kep. 
 
1000 LIENS GENEEALLT. [§ 604 
 
 ery -without the consent of the lawyer who rendered him valuable 
 service.^* 
 
 § 604. Requirements as to Writing and Stating Amount of 
 Claim. — Some statutes require that notice of an attorney's charg- 
 ing lien must be in writing.^* In the absence of such a statutory 
 requirement, however, a written notice is not necessary.^* And 
 where a statute provides for notice in writing, and also for notice 
 by the filing or recording of the lien, it is optional with the lien 
 claimant which method he shall pursue." 
 
 So, also, in some jurisdictions it is necessary that the notice of 
 lien should specify the amount claimed,'' and, in general terms, 
 for what services.'* But where an attorney's compensation arises 
 out of an implied contract, it will be sufficient for the notice of 
 lien to fairly inform the party to whom it is directed that a lien 
 is claimed, the nature and character thereof, for what it is claimed, 
 and upon what it is intended to be enforced.^" So, it has been 
 held that a notice to the effect that an attorney claimed a lien of 
 fifty per cent upon the amount due, or to become due, for services 
 rendered, and to be rendered, is a sufficient compliance with a 
 statutory requirement that the amount claimed be stated in the 
 notice.' The fact that the attorney signed the notice in his repre- 
 sentative capacity, rather than as an individual, does not render 
 it defective.* 
 
 14 Covington v. Bass, 88 Tenn. 496, Washington. — ^Wooding v. Grain, 11 
 
 12 S. W. 1033. Wash. 207, 39 Pac. 442. 
 
 16 United States. — Patrick v. Leach, 16 Cones v. Brooks, 60 Neb. 698, 84 
 
 17 Fed. 476. N. W. 85. 
 
 Indiana. — Koons v. Beach, 147 Ind. 17 Hroch v. Aultman & Taylor Co., 
 
 137, 45 N. E. 601, 46 N. E. 587. 3 S. D. 477, 54 N. W. 269. 
 
 Kansas. — Kansas Pac. R. Co. v. 18 Forbush v. Leonard, 8 Minn. 303. 
 
 Thacher, 17 Kan. 92; Noftzger v. Mof- 19 Crosby v. Hatch, (la.) 135 N. W. 
 
 fett, 63 Kan. 354, 65 Pac. 670. 1079. 
 
 NortTi Dakota. — Clark v. Sullivan, 20 Crovpley v. Le Due, 21 Minn. 412. 
 
 3 N. D. 280, 55 N. W. 733. 1 Barthell v. Chicago, M. & St. P. R. 
 
 South Dakota.— Hroch v. Aultman Co., 138 la. 688, 116 N. W. 813. 
 
 & Taylor Co., 3 S. D. 477, 54 N. W. 2 Gibson v. Chicago, M. & St. P. R. 
 
 269. Co., 122 la. 565, 98 N. W. 474. 
 
§§ 605, 606] 
 
 LIENS GENERALLY. 
 
 1001 
 
 § 605. To Whom Notice Should Be Given. — l^otice of lien 
 should be given to the adverse party, or to any other person whom 
 it is desired to ailect thereby, personally,' or to the attorney,* or 
 authorized agent,* of such person. It is allowable, and it would 
 seem to be advisable, to serve notice of an attorney's lien with the 
 original papers in the action.® The right of an assignee of a judg- 
 ment to notice of lien will be considered hereafter.'' 
 
 Waiver or Loss of Lien. 
 
 § 606. In General. — Excepting in cases of express waiver,' 
 an attorney's charging lien will not be deemed to have been waived 
 unless the facts and circumstances show an intention, or will war- 
 rant the inference of an intention, on the part of the attorney, to 
 abandon it. Thus, it has been held that an attorney's lien rights 
 
 Co., 56 la. 720, 10 N. W. 244; Kansas 
 Pac. E. Co. V. Thacher, 17 Kan. 92; 
 Noftzger v. Moffett, 63 Kan. 354, 65 
 Pac. 670; Young v. Eenshaw, 102 Mo. 
 App. 173, 76 S. W. 701. 
 
 4 Smith V. Chicago, R. I. & P. E. 
 Co., 56 la. 720, 10 N. W. 244; Kansas 
 Pac. E. Co. V. Thacher, 17 Kan. 92; 
 Noftzger c. Moffett, 63 Kan. 354, 65 
 Pac. 670. 
 
 Compare Young v. Eenshaw, 102 
 Mo. App. 173, 76 S. W. 701, wherein 
 it was held that the service of notice 
 on the attorney for a party was in- 
 sufficient under the Missouri statute. 
 
 So, it has been held that the ser- 
 vice of notice on a member of a law 
 firm, was not sufficient notice to an 
 attorney who, although a member of 
 the firm, was acting as an individual 
 in the suit in connection with which 
 the notice was served. St. Louis & S. 
 F. R. Co. V. Bennett, 35 Kan. 395, 11 
 Pac. 155. 
 
 5 Smith V. Chicago, R. I. & P. E. Co., 
 56 la. 720, 10 N. W. 244; Abbott v. 
 
 United Eys. Co., 138 Mo. App. 530, 
 119 S. W. 964. 
 
 The person served as "agent" of an- 
 other must be one upon whom, under 
 the local law, such a service can be 
 made; otherwise, it will be defective. 
 Lumpkin v. Louisville & N. E. Co., 
 136 Ga. 135, 70 S. E. 1101; Kansas 
 Pac. E. Co. V. Thacher, 17 Kan. 92; 
 Weed Sewing Mach. Co. v. Boutelle, 56 
 Vt. 570, 48 Am. Eep. 821. 
 
 But where a corporate officer re- 
 ceived a notice, served by mail, claim- 
 ing an attorney's lien, and acted on 
 such notice in seeking a settlement, it 
 waives the objection that the notice 
 was not personally served. Abbott v. 
 United Eys. Co., 138 Mo. App. 530, 
 119 S. W. 964. 
 
 6 Smith V. Chicago, R. I. & P. R. 
 Co., 56 la. 720, 10 N. W. 244. 
 
 7 See infra, § 648. 
 
 8 Under some statutes an attorney's 
 lien may be released by giving bond. 
 Jamison v. Eanck, 140 la. 635, 119 N. 
 W. 76. See also Armitage v. Sulli- 
 van, 69 la. 426, 29 N. W. 399. 
 
1002 LIENS GENEEALLY. [§ 606 
 
 are not lost merely because he consented that his client should col- 
 lect the sum due, and thereafter pay his fees.^ Nor will a waiver 
 result because the attorney failed to deduct his fees from a portion 
 of the fund collected by him/" or because of a dispute with the 
 client as to the amount due,^' or because the attorney accepted an 
 order to pay over to another whatever might be collected by him 
 for his client, ^^ or because of the enactment of a statute under 
 which the judgment debt might be paid to the sheriff.''' Nor will 
 the lien be lost by the appointment of a receiver,** or a guardian, '° 
 or by delivering over, to a receiver duly appointed, the property 
 on which the lien is claimed, especially where such delivery is 
 accompanied with notice of the lien.*^ So, it has been held that 
 the right to a charging lien will not be affected by the fact that 
 the attorney was employed by the real party in interest, and not by 
 the nominal party appearing of record." The mere fact that a 
 judgment became dormant, and was subsequently revived by other 
 attorneys, will not divest a charging lien.*' Nor will ah attorney's 
 charging lien be destroyed because of his failure to prosecute a 
 suit for its enforcement without additional compensation.** 
 
 But where the facts and circumstances show an intention on 
 the part of the attorney to waive his lien, they will be given that 
 effect.^" Thus, a waiver may be predicated on the attorney's 
 
 9 Farmer v. Stillwater Water Co., 147. See also Matter of Bailey, 66 
 108 Minn. 41, 121 N. W. 418. How. Pr. (N. Y.) 64. 
 
 10 Hooper v. Brundage, 22 Me. 460 ; l'' McGregor v. Comstock, 28 N. Y. 
 Baker v. Cook, 11 Mass. 236. Com- 237. 
 
 pare German v. Browne, 137 Ala. 429, *' Jenkins v. Stephens, 60 Ga. 216. 
 
 34 So. 985. 19 Fisher v. Mylius, 62 W. Va. 19, 
 
 11 Commercial Telegram Co. v. ^^ ^- ^- ^''^■ 
 
 Smith, 57 Hun 176, 19 Civ. Proc. 32, '" Goodrich v. McDonald, 112 N. Y 
 
 10 N Y S 433 ■^^^' "^^ "'^" ^' ^*^' Pennsylvania Co. v. 
 
 Thatcher, 78 Ohio St. 175, 85 N. E. 
 
 iSKlnsey v. Stewart, 14 Tex. 457. 
 
 55; Eenick v. Ludington, 16 W. Va. 
 
 "East River Bank v. Kidd, 13 g^g 
 
 Abb. Pr. (N. Y.) 337 note. ji,^ ^^.^^^^ ^^ ^^^ ^ j.^j ^^ ^^^^.^ 
 
 "Bowling Green Sav. Bank v. „?ar^ is under an Iowa statute suffi- 
 
 Todd, 64 Barb. (N. Y.) 146. ^ient to warrant the court to order 
 
 15 State V. District Court, 30 Mont. the release of an attorney's lien. 
 8, 75 Pac. 516. Jamison v. Eanck, 140 la. 635, 119 
 
 16 Cory V. Harte, 13 Daly (N. Y.) N. W. 76. 
 
§ 607] 
 
 LIENS GENERALLY. 
 
 100," 
 
 laches,' or on the fact that he has taken an assignment of the sub- 
 ject-matter of the litigation and claimed to be the owner thereof.^ 
 So, an attorney may, by his conduct, estop himself to claim his 
 lien,* as, for instance, by his failure to assert it,* or by an agree- 
 ment to follow a particular fund for his compensation.® But the 
 fact that an attorney wrote his client stating that he did not wish 
 to impress a lien on a certain fund, but desired a check for the 
 amount of his fees, is not a waiver of his lien.* 
 
 § 607. Satisfaction or Release of Judgment. — An attor- 
 ney's charging lien will be deemed to have been waived where the 
 attorney procures the satisfaction of the judgment which was 
 charged with it,'' or where he consents to the payment of the judg- 
 ment debt to his client.* So, it has been held that where an at- 
 torney sent a transcript of judgment to his client in another state 
 for the purpose of having it enforced, the judgment debtor was 
 warranted in paying the entire amount to the client.' An attor- 
 ney may also waive his charging lien by releasing the lien of a 
 judgment on which it exists ; '" but the attorney's lien will not 
 
 1 Fillmore v. Wells, 10 Colo. 228, 
 15 Pae. 343, 3 Am. St. Rep. 567; 
 McNagney v. Frazer, 1 Ind. App. 98, 
 27 N. E. 431 ; Eeavey v. Clark, 56 Hun 
 641 mem., 18 Civ. Proc. 272, 9 N. Y. 
 S. 216; Neill v. Van Wagenen, 54 
 Super. Ct. (N. Y.) 477; Winans p. 
 Mason, 33 Barb. (N. Y.) 522; Winans 
 V. Mason, 21 How. Pr. (N. Y.) 153; 
 Winans v. Grable, 18 S. D. 182, 99 N. 
 W. 1110. 
 
 Compare Stone v. Hyde, 22 Me. 318. 
 
 2 Whitehead v. Jessup, 7 Colo. App. 
 460, 43 Pac. 1042. 
 
 3 Speer v. Matthev.s, 78 Ga. 757, 3 
 S. E. 644; Watters v. Wells, 7 Ga. 
 App. 778, 68 S. E. 450; Falardeau v. 
 Washburn, 199 Mass. 363, 85 N. E. 
 171 ; Lawrence v. Townsend, 88 N. Y. 
 24; McClare v. Lockard, 121 N. Y. 
 308, 24 N. E. 453, reversing 2 N. Y. S. 
 646; West V. Bacon, 164 N. Y. 425, 
 
 58 N. E. 522, modifying 13 App. Div. 
 371, 43 N. Y. S. 206. 
 
 *Kreuzen v. Forty-second St. M. & 
 St. N. Ave. R. Co., 13 N. Y. S. 588; 
 Guild V. Borner, 7 Baxt. (Tenn.) 266. 
 
 5 Teller v. Hill, 18 Colo. App. 509, 
 72 Pae. 811; Pennsylvania Co. v. 
 Thatcher, 78 Ohio St. 175, 85 N. E. 
 55. 
 
 6 In re King, 168 N. Y. 53, 60 N. E. 
 1054. 
 
 1 Cowen r. Boone, 48 la. 350. 
 
 8 Goodrich ,.. McDonald, 112 N. Y. 
 157, 16 Civ. Proc. 222, 19 N. E. 649, 
 reversing 41 Hun 235, 11 Civ. Proc. 
 147, 2 N. Y. St. Rep. 144. Compare 
 Farmer v. Stillwater Water Co., 108 
 Minn. 41, 121 N. w. 418. 
 
 9 Barnabee v. Holmes, 115 la. 583, 
 88 N. W. 1098. 
 
 ll> Wishard v. Biddle, 64 la. 526, 21 
 N. W. 15. 
 
1004 LIENS GENERALLY. [§ 608 
 
 be affected by the fact that his client released the lien of the judg- 
 ment.'^ The payment of the judgment to an associate counsel 
 will usually operate to release the lien of all the attorneys in the 
 case,^* although under some circumstances this rule has been modi- 
 fied, and the payment to the associate attorney held not to deprive 
 the principal attorney of his lien ; but the lien attaches to the funds 
 in the hands of the associate counsel.*' 
 
 § 608. Acceptance of Independent Security. — An attorney 
 who accepts independent security for the payment of his compen- 
 sation, thereby waives his claim to a charging lien,** even though 
 the security so taken should ultimately fail.*' Thus, it has been 
 held that an attorney's lien becomes merged in a judgment which 
 has been assigned to him.*® It must clearly appear, however, that 
 the security was taken in discharge of the client's obligation ; " 
 thus, the lien is not waived by the receipt of a note on the condi- 
 tion that it should constitute payment only when it was actually 
 paid.*' In some jurisdictions the statutes provide that any person 
 interested may secure the release of an attorney's special or charg- 
 ing lien by filing with the clerk of a court of competent jurisdic- 
 tion a bond in the amount prescribed by the statute, which is fre- 
 quently double the amount of the attorney's charges ; *® and after 
 
 "Woods V. Verry, 4 Gray (Mass.) WoUenberg, 51 Ore. 88, 92 Pac. 1079, 
 
 357; Mays v. Sanders, 90 Tex. 132, 37 14 L.R.A.(N.S.) 1095. 
 
 S. W. 595. And see Baker v. Cook, 11 is Dodd v. Brott, 1 Minn. 270, 60 
 
 Mass. 236. Am. Dec. 541; Bishop v. Garcia, 14 
 
 12 Thompson v. Missouri Pac. R. Co., Abb. Pr. N. S. (N. Y.) 69; McDonogh 
 
 134 Mo. App. 591, 113 S. W. 1142; v. Sherman, 138 App. Div. 291, 122 
 
 Compiler v. Missouri & K. Tel. Co., N. Y. S. 1033. Compare Reniek i.. 
 
 137 Mo. App. 89, 119 S. W. 493. Ludington, 16 W. Va. 378. 
 
 18 Fuller V. Clemmons, 158 Ala. 340, " Davis v. Jackson, 86 Ga. 138, 12 
 
 48 So. 101. S. E. 299. 
 
 1* Fulton V. Harrington, 7 Houst. 1' Johnson v. Johnson Railroad 
 
 (Jel.) 182, 30 Atl. 856; Stearns v. Signal Co., 57 N. J. Eq. 79, 40 Atl. 
 
 WoUenberg, 51 Ore. 88, 92 Pac. 1079, 193. 
 
 14 L.R.A.(N.S.) 1095; Cantrell v. 19 Jamison v. Ranek, 140 la. 635, 
 
 Ford, (Tenn.) 46 S. W. 581. 119 N. W. 76; Mosteller v. Holborn, 21 
 
 15 Fulton V. Harrington, 7 Houst. S. D. 547, 114 N. W. 693. 
 (Del.) 182, 30 Atl. 856; Stearns v. 
 
§§ 609-611] LIENS GENEEALLT. 1005 
 
 such a bond is filed the client has full control of the judgment and 
 the fund in the hands of the clerk applicable to its satisfaction.*" 
 
 § 609. Bringing Suit for Compensation. — An attorney's 
 charging lien is waived by bringing suit against his client for his 
 compensation, and reducing his claim to judgment.* But the mere 
 fact that an attorney has sued his client, is not sufficient to show 
 a waiver of the attorney's charging lien for compensation for 
 services which were not embraced in the suit.* 
 
 § 610. Abandonment of Cause. — An attorney who, with- 
 out cause, abandons the litigation in which he has been retained, 
 thereby waives any right which he may have had to a lien for his 
 services ; ' nor, in such case, can the attorney recover compensa- 
 tion in any other way.* Where, however, an attorney is justified 
 in abandoning a cause, he will be entitled to a lien either for the 
 stipulated amount, or the reasonable value of his services, accord- 
 ing to the circumstances.' 
 
 § 611. Assignment by Attorney. — It has been quite gener- 
 ally held that, unlike the retaining lien,^ a charging lien may be 
 assigned by the attorney, and that such assignment is valid,'' and 
 
 30 Jamison r. Kanck, 140 la. 635, Mississippi. — Stewart v. Flowers, 44 
 
 119 N. W. 76. Miss. 513, 7 Am. Rep. 707. 
 
 1 Jones V. Muskegon County Circuit New York. — In re Dunn, 205 N. Y. 
 Judge, 95 Mich. 289, 54 N. W. 876; 398, 98 N". E. 914; Tuck v. Manning, 
 Wipfler V. Warren, 163 Mich. 189, ]28 53 Hun 455, 17 Civ. Proc. 175, 6 N. 
 N. W. 178, 17 Detroit Leg. N. 905; Y. S. 140; Halbert v. Gibbs, 16 App. 
 Heech v. Canaan, 14 Vt. 485. See, Div. 126, 4 N. Y. Ann. Cas. 232, 45 
 however, Crosby v. Hatch, (la.) 135 N. Y. S. 113; Fargo v. Paul, 35 Misc. 
 N. W. 1079. 568, 72 N. Y. S. 21. 
 
 2 Commercial Telegram Co. v. 4 See supra, §§ 453, 558. 
 
 Smith, 57 Hun 176, 19 Civ. Proc. 32, 5 Halbert v. Gibbs, 16 App. Div. 126, 
 
 10 N. Y. S. 433. 4 N". Y. Ann. Cas. 232, 45 N. Y: S. 113. 
 
 s United States. — Hektograph Co. v. See also Penn v. McGhee, 6 Ga. App. 
 
 Fourl, 11 Fed. 844. 631, 65 S. E. 686. And see also 
 
 Illinois. — Morgan v. Roberts, 38 111. supra, §§ 453, 558. 
 
 67. 6 See supra, § 578. 
 
 Massachusetts. — White v. Harlow, 5 '' Taylor v. Black Diamond Coal 
 
 Gray 463. Min. Co., 86 Cal. 589, 25 Pac. 51 ; 
 
1006 
 
 LIENS GENEEALLY. 
 
 [§ 612 
 
 may be enforced by the assignee.' But where an attorney has a 
 charging lien against several joint litigants, it would seem that 
 his right to a lien as against them is indivisible, and, therefore, he 
 cannot assign his claim against some of them only.' It has also 
 been held that an attorney is bound to give his client an oppor- 
 tunity to pay the lien, and obtain a release thereof; and that to 
 sell the lien to the adverse party without affording such opportu- 
 nity, is in fraud of the client's right.*" 
 
 § 612. Waiver or Loss of Retaining Lien. — As a general 
 rule, the lien of an attorney on the papers or other property of 
 his client which comes into his possession, terminates when his 
 client's interest therein terminates.'* So, possession being essen- 
 tial to a retaining lien,*^ a voluntary surrender of the property 
 will constitute a waiver thereof.*' A waiver may also result from 
 the fact that the attorney sued for his fees and reduced the claim 
 therefor to judgment,** or that he abandoned the business under- 
 taken by him without cause.** And where an attorney makes a 
 
 Day V. Bowman, 109 Ind. 383, 10 N. E. 
 126; Sibley v. Pine County, 31 Minn. 
 201, 17 N. W. 337; Leask v. Hoagland, 
 64 Misc. 156, 118 N. Y. S. 1035. 
 
 Compare Chappell v. Dann, 21 Barb. 
 (N. Y.) 17. 
 
 8 Muller V. New York, 23 Civ. Proc. 
 261, 29 N. Y. S. 1096; Fisher v. 
 Mylius, 62 W. Va. 19, 57 S. E. 276. 
 
 SMulford V. Hodges, 10 Hun (N. 
 Y.) 79. 
 
 10 Taylor v. Young, 56 Mich. 285, 22 
 N. W. 799. 
 
 11 Jackson v. American Cigar Box 
 Co., 141 App. Div. 195, 126 N. Y. S. 
 58. 
 
 l« See supra, § 576. 
 
 13 United States. — In re Wilson, 12 
 Fed. 235, 26 Alb. L. J. 271. 
 
 Alaiama. — German v. Browne, 137 
 Ala. 429, 34 So. 985. 
 
 Illinois. — Nichols v. Pool, 89 111. 
 491. 
 
 Mississippi. — Stewart v. Flowers, 
 44 Miss. 518, 7 Am. Kep. 707. 
 
 Neto HampsMre. — Dennett v. Cutts, 
 11 N. H. 163. 
 
 New York. — Weber v. Werner, 138 
 App. Div. 127, 122 N. Y. S. 943. 
 
 Pennsylvania. — Dubois's Appeal, 38 
 Pa. St. 231, 80 Am. Dee. 478. 
 
 South Dakota. — Winans v. Grable, 
 18 S. D. 182, 99 N. W. 1110. 
 
 Texas. — Casey v. March, 30 Tex. 
 184. 
 
 WOfSMngton. — Gottstein v. Harring- 
 ton, 25 Wash. 508, 65 Pac. 753. 
 
 West Virginia. — Hazeltine v. 
 Keenan, 54 W. Va. 600, 46 S. E. 609, 
 102 Am. St. Rep. 953. 
 
 1* Jones V. Circuit Judge, 95 Mich. 
 289, 54 N. W. 876. And see also 
 supra, § 609. 
 
 IB Commerell v. Poynton, 1 Swanst. 
 (Eng.) 1; Hektograpli Co. v. Fourl, 
 11 Fed. 844; In re Kieser, 137 App. 
 
§ 612] LIENS GENEEALLT. 1007 
 
 formal declaration of trust in favor of his client, with the state- 
 ment that he holds property for certain purposes, and in no other 
 way, and that upon the conveyance of such property to such per- 
 sons as the cestui que trust may designate, he will pay over the 
 proceeds of the sale to the latter, he expressly waives any lien he 
 may have had thereon for services rendered as attorney to the 
 cestui que trust}^ But a retaining lien is not lost because the prop- 
 erty to which it attached was surrendered under an order of court 
 on the giving of security," or by the surrender of such property 
 to a receiver of the client with written notice of the lien,'' or be- 
 cause the attorney received a payment on account for his serv- 
 ices ; '* nor will the insanity of the client, and the appointment of 
 a guardian, divest the attorney's retaining lien.^" 
 
 Div. 177, 121 N. Y. S. 1070. See also " Cory v. Harte, 13 Daly (N. Y.) 
 
 supra, § 610. 147. 
 
 16 West V. Bacon, 164 N. Y. 425, 58 19 In re Holins, 197 N. Y. 361, 90 
 
 N. E. 522, modifying' 13 App. Div. 371, N. E. 997. 
 
 43 N. Y. S. 206. And see also infra, 20 State v. District Court, 30 Mont. 
 
 § 619. 8, 75 Pac. 516; Matter of Stenton, 53 
 
 " See infra, § 577. Misc. 515, 105 N. Y. S. 295. 
 
CHAPTEE XXIV. 
 EIGHTS AND PROPERTY AFFECTED BY LIEN. 
 
 Cause of Action. 
 
 613. Right to Lien on Cause of Action. 
 
 614. Validity of Statutes Creating Lien. 
 
 615. Extent of Lien. 
 
 616. Cause of Action for Personal Tort. 
 
 617. When Lien Accrues. 
 
 Money and Funds. 
 
 618. Funds in Hands of Adverse Party. 
 
 619. Funds in Hands of, or Owing to, Executors, Administrators, or Trus- 
 
 tees. 
 
 620. Legacies and Distributive Shares. 
 
 621. Attached Funds. 
 
 622. Appropriations and Other Government Funds. 
 
 623. Money Paid into Court. 
 
 624. Fund in Equity. 
 
 625. Attorney's Aid and Client's Participation Necessary. 
 
 626. Lien Follows Fund. 
 
 Real and Personal Property. 
 
 627. Lien on Land in Absence of Statute. 
 
 628. Lien Created by Contract. 
 
 629. Lien on Land by Virtue of Statute. 
 
 630. Necessity of Recovery. 
 
 631. Partition Proceedings. 
 
 632. Homesteads. 
 
 633. Personal Property. 
 
 Judgments, Decrees, and Awards. 
 
 634. Judgments and Decrees Generally. 
 
 635. As Affected by Nature of Judgment. 
 
 636. Extent of Lien. 
 
 637. Judgments and Decrees for Alimony. 
 
 To What Retaining Lien Attaches, 
 
 638. Property in Possession. 
 
 639. Possession Must Be Consistent with Lien. 
 
 1008 
 
613] 
 
 ItlGIITS AND PEOPEKTY AFFECTED BY LIEN. 
 
 1009 
 
 Cause of Action. 
 
 § 613. Right to Lien on Cause of Action. — At common law 
 an attorney was not entitled to a lien on his client's cause of 
 action,^ although it has been intimated that the court, in its dis- 
 cretion, had the power to protect an attorney in the collection of 
 his fees where the facts warranted such action ; ^ thus, in a Penn- 
 sylvania case wherein it appeared that the defendant was about 
 to remove or fraudulently transfer his property, a cautionary judg- 
 ment was entered against him on petition presented in open court. 
 This procedure, however, was taken in the interest of the plaintiff, 
 but it would seem to have some bearing, more or less, according to 
 the local practice, and an attorney's right to a lien under the local 
 laws, on the question under consideration. It is undoubtedly a 
 recognition of the right of the court to take action prior to judg- 
 ment in the interest of justice.* 
 
 In several jurisdictions, however, the client's cause of action 
 
 1 United States. — Swanston v. 
 Morning Star Min. Co., 13 Fed. 215, 4 
 McCrary 241 ; Sherry v. Oceanic 
 Steam Nav. Co., 72 Fed. 565; In re 
 Baxter, 154 Fed. 22, 83" C. C. A. 106. 
 
 Arkansas. — DeGraffenreid v. St. 
 Louis S. W. E. Co., 66 Arlc. 260, 50 
 S. W. 272. 
 
 District of Columbia. — Lamont v. 
 Wasliington & •Georgetown R. Co., 2 
 Maclv-ey 502, 47 Am. Eep. 268. 
 
 Louisiana. — Smitli v. Vicl<sburg S. 
 & P. E. Co., 112 La. 985, 36 So. 826, 
 
 Ohio. — Pennsylvania Co. v. Thatch- 
 er, 78 Ohio St. 175, 85 N. E. 55. 
 
 Oregon. — Stearns v. Wollenberg, 51 
 Ore. 88, 92 Pac. 1079, 14 L.R.A.(N.S.) 
 1095. 
 
 Utah. — Sandberg v. Victor Gold & 
 Silver Min. Co., 18 Utah 66, 55 Pac. 
 74. 
 
 2 "It would appear therefore that,- 
 where there is no lien upon the cause 
 
 Attys. at L. Vol. II.— 64. 
 
 of action, either by contract or by 
 statute, the plaintiff's attorney has no 
 vested right which the court is bound 
 to protect at the request of the at- 
 torney; but even then the court may, 
 in its discretion, exercise such arbi- 
 trary power, and doubtless will do so, 
 when it can see that, through the exer- 
 cise of the usual and ordinary powers 
 vested in a court over its judgment as 
 to the form and effect thereof, or as to 
 its satisfaction, it may aid the attor- 
 ney in the collection of his fees." 
 Stearns v. Wollenberg, 51 Ore. 88, 92 
 Pac. 1079, 14 L.E.A.(N.S.) 1095. 
 
 sSeisner v. Blake, 13 Pa. Co. Ct. 
 333. See also Witmer i'. Port Trever- 
 ton Church, 17 Pa. Co. Ct. 38 ; Persh- 
 ing V. Iron City & Hammondville Imp. 
 Co., 46 Pittsb. L. J. (Pa.) 167. See 
 also Boogren v. St. Paul City E. Co., 
 97 Minn. 51, 106 N. W. 104, 114 Am. 
 St. Rep. 691, 3 L.R.A.(N.S.) 379. 
 
1010 
 
 EIGHTS AND PROPEETT ATFECTED BY LIEN, 
 
 [§ 614 
 
 is now, by legislation, expressly subjected to an attorney's ebarg- 
 ing lien.* These statutes are not retroactive.* 
 
 § 614. Validity of Statutes Creating Lien.— Statutes of 
 this character do not divest the client of his property or property 
 rights,* or of the right to control his litigation,' nor fail because the 
 method of enforcing the lien was not provided for.' Nor are they 
 
 * Georgia. — Johnson v. McCurry, 
 102 Ga. 471, 31 S. E. 88. 
 
 Iowa. — Hubbard v. Ellithorpe, 135 
 la. 259, 112 N. W. 796, 124 Am. St. 
 Rep. 271. 
 
 Kansas. — Kansas Pac. R. Co. v. 
 Thacher, 17 Kan. 92. 
 
 Kentucky. — Mcintosh v. Bach, 110 
 Ky. 701, 62 S. W. 515. 
 
 Minnesota. — Northrup v. Hayward, 
 102 Minn. 307, 12 Ann. Cas. 341, 113 
 N. W. 701. 
 
 Missouri. — O'Connor v. St. • Louis 
 Transit Co., 198 Mo. 622, 8 Ann. Cas. 
 703, 97 S. W. 150, 115 Am. St. Rep. 
 495; Taylor v. St. Louis Transit Co., 
 198 Mo. 715, 97 S. W. 155; Conkling 
 V. Austin, 111 Mo. App. 292, 86 S. W. 
 911; Bishop v. United Rys. Co., 165 
 Mo. App. 226, 147 S. W. 170. 
 
 Nebraska. — Lewis v. Omaha St. R. 
 Co., 114 N. W. 281. 
 
 New York. — Fischer-Hansen v. 
 Brooklyn Heights R. Co., 173 N. Y. 
 492, 66 N. E. 395; Cohn v. Polstein, 41 
 Misc. 431, 84 N. Y. S. 1072; In re 
 Robbins, 61 Misc. 114, 112 N. Y. S. 
 1032; Adams v. Niagara Cycle Fit- 
 tings Co., 74 N. Y. S. 485. 
 
 Tennessee. — Illinois Cent. R. Co. v. 
 Wells, 104 Tenn. 706, 59 S. W. 1041; 
 Tompkins v. Nashville C. & St. L. R. 
 Co., 110 Tenn. 157, 72 S. W. 116, 100 
 Am. St. Rep. 795, 61 L.R.A. 340; Sido- 
 way V. Jones, 125 Tenn. 322, 143 S. 
 W. 893, 
 
 Utah. — Comp. Laws of Utah, § 135. 
 
 Washington. — McRea v. Warehime, 
 49 Wash. 194, 94 Pac. 924. 
 
 As to the eflfect of settlement with- 
 out the attorney's consent, see infra, 
 §§ 640-645. 
 
 5 Northrup v. Hayward, 102 Minn. 
 307, 12 Ann. Cas. 341, 113 N. W. 701; 
 Adee v. Adee, 55 App. Div. 63, 66 N. 
 Y. S. 1101. 
 
 6 Standidge v. Chicago R. Co., 254 
 111. 524, 98 N. E. 963 ; Adams v. Niag- 
 ara Cycle Fittings Co., 10 N. Y. Ann. 
 Cas. 401, 74 N. Y. S. 485. 
 
 1 1llinois Cent. R. Co. v. Wells, 104 
 Tenn. 706, 59 S. W. 1041. 
 
 "Appellant, also assails the statute 
 under consideration on the ground 
 that it deprives persons against whom 
 suits are brought or claims held by 
 attorneys for collection of their con- 
 stitutional and property right to buy 
 their peace by making contracts of 
 settlement. This argument proceeds 
 upon a false assumption. The statute 
 does not affect the right of the defend- 
 ants in suits, or persons against whom 
 claims or demands are held for collec- 
 tion, from settling the same, but it 
 requires, after notice, that in making 
 such settlement they shall take into 
 account the attorney's claim for his 
 fees." Standidge v. Chicago R. Co., 
 254 111. 524, 98 N. E. 963. 
 
 8 Illinois Cent. R. Co. v. Wells, 104 
 Tenn. 706, 59 S. W. 1041, 
 
§ 614] EIGHTS AND PEOPEETT AFFECTED BY MEN. 1011 
 
 objectionable as special or class legislation,® or as impairing the 
 rigbt to a jury trial.^" Such a law creates a new substantial right 
 in favor of attorneys, and hence is not a remedial statute having 
 a retrospective operation.'* So, a provision to the effect that the 
 lien created on the cause of action shall not be lost by any settle- 
 ment between the parties has been held not to restrict or destroy 
 the adverse party's right to contract, or to effect a settlement of 
 the action ; '* nor does such provision . deprive him of his rights 
 in the premises without due process of law.'* And "an act to pre- 
 vent frauds between attorneys, clients, and defendants, making 
 agreements between attorney and client a lien upon the cause of 
 action," has been held to be constitutional as against objections 
 that it contained more than one subject in its title, and that the 
 title failed to express clearly and sufficiently the subject-matter of 
 the statute.'* Doubt was expressed in one case as to the validity 
 of these statutes on the theory that they tended to encourage liti- 
 gation, and, therefore, were antagonistic to sound public policy ; '* 
 but a sufficient answer to this statement is that such statutes are 
 enacted for the benefit of the honorable practitioner, and it is not 
 
 9 Standidge v. Chicago E. Co., 254 constitution. Standidge v. Chicago 
 
 111. 524, 98 N. B. 963; O'Connor v. St. E,. Co., 254 111. 524, 98 N. E. 963, 
 Louis Transit Co., 198 Mo. 622, 8 Ann. ic Standidge v. Chicago R. Co., 254 
 
 Gas. 703, 97 S. W. 150, 115 Am. St. 111. 524, 98 N. E. 963; In re King, 168 
 
 Rep. 495; Taylor v. St. Louis Transit N. Y. 53, 60 N. E. 1054. 
 Co., 198 Mo. 715, 97 S. W. 155; Wait "Baker v. Baker, 258 111. 418, 101 
 
 V. Atchison, T. & S. F. R. Co., 204 Mo. N. E. 587. 
 
 491, 103 S. W. 60; Taylor v. St. Louis 12 O'Connor v. St. Louis Transit Co., 
 
 Merchants' Bridge Terminal R. Co., 198 Mo. 622, 8 Ann. Cas. 703, 97 S. W. 
 
 207 Mo. 495, 105 S. W. 740; White- 150, 115 Am, St. Rep. 495; Taylor v. 
 
 cotton V. St. Louis & H. R. Co., 250 St. Louis Transit Co., 198 Mo. 715, 
 
 Mo. 624, 157 S. W. 776. 97 S. W. 155. And see Taylor v. St. 
 
 Those who follow the legal profes- Louis Merchants' Bridge Terminal R. 
 
 sion constitute a class, and laws may Co., 207, Mo. 495, 105 S. W. 740. 
 be passed applicable only to members 18 O'Connor v. St. Louis Transit Co., 
 
 of a class where the classification rests 198 Mo. 622, 8 Ann. Cas. 703, 97 S. W. 
 
 upon some disability, attribute, or 150, 115 Am. St. Rep. 495. 
 classification marking them as proper l* O'Connor v. St. Louis Transit Co., 
 
 objects for the operation of such spe- 198 Mo. 622, 8 Ann. Cas. 703, 97 S. W. 
 
 cial legislation, in any case wherein 150, 115 Am. St. Rep. 495. 
 such local or special legislation, 15 Illinois Cent. R. Co. v. Wells, 104 
 
 is not expressly forbidden by the Tenn. 706, 59 S. W. 1041. 
 
1012 EIGHTS AND PEOPEETY AFFECTED BY LIEN. [§ 615 
 
 sufHeient to render them objectionable that they may, in some 
 instances, enable disreputable attorneys to commit unprofessional 
 acts. The courts may be trusted to care for these matters.^* 
 
 § 615. Extent of Lien. — The extent of an attorney's charg- 
 ing lien on his client's cause of action must be determined, in each 
 case, from an examination of the local law.''' The New York 
 judiciary law provides : "From the commencement of an action or 
 special proceeding, or the service of an answer containing a coun- 
 terclaim, the attorney who appears for a party has a lien upon his 
 client's cause of action, claim or counterclaim, which attaches to 
 a verdict, report, decision, judgment or final order in his client's 
 favor, and the proceeds thereof in whosoever hands they may 
 come." " A similar statute has been enacted in Missouri,^' and 
 in TJtah.^" These laws are not mere practice acts, but they create 
 a right such as will be enforced by federal courts sitting in the 
 state wherein they prevail.^' The Tennessee act, giving plaintiff's 
 attorney a lien upon the right of action, does not give the attorney 
 any right directly against defendant, but merely to follow plain- 
 tiff's right of action; and hence, where defendant paid plaintiff 
 $75 to compromise litigation, and paid $75 into court under the 
 agreement for the benefit of plaintiff's attorneys, the attorneys 
 cannot enforce a lien against defendant, on the theory that the 
 litigation was compromised for $150.' A Kentucky statute pro- 
 vides: "Attorneys at law shall have a lien upon all claims or de- 
 mands . . . put into their hands for suit or collection . . . 
 for the amount of any fee which may have been agreed upon by 
 
 16 O'Connor v. St. Louis Transit Co., considered in the text, however, arc 
 198 Mo. 622, 8 Ann. Cas. 703, 97 S. W. deemed to be typical. 
 
 150, 115 Am. St. Rep. 495. 18 N. Y. Judiciary Law, § 475. 
 
 17 The variety of statutes which gov- 19 Taylor v. St. Louis Transit Co., 
 em the subject-matter under consider- 198 Mo. 715, 07 S. W. 155. 
 
 ation, and the frequency with which 20 Comp. Laws of Utah, § 135. 
 
 such statutes are amended, etc., ren- 21 In re Baxter & Co., 1 54 Fed. 22, 
 
 ders it impracticable to consider spe- 83 C. C. A. 106 (construing N. Y. 
 
 cifically those relating to each juris- Code) . 
 
 diction. The local laws must be l Acts 1899, C. 243, § 1 ; Sidoway r. 
 
 examined in these cases. The statutes Jones, 125 Tenn. 322, 143 S. W. 893. 
 
§ 615] EIGHTS AND PROPERTY AFFECTED BY LIEN. 1013 
 
 the parties." ^ This statute has been held to embrace a claim to 
 property as well as a demand for the payment of money, and a 
 result obtained by any kind of legal proceeding ; * and the word 
 "action," as used therein, includes all proceedings in any court in 
 the state.* So, it has been held that the New York statute in- 
 cludes eminent domain proceedings,' and proceedings for the open- 
 ing of a street,* or any other special proceeding.'' It is immaterial 
 that the client acts or sues in a representative capacity.' The in- 
 terest of the attorney, however, depends upon the client's right to 
 recover; and if the client has no cause of action, he can acquire 
 none by the employment of counsel.^ Now, as formerly, the plain- 
 tiff's right of action is merged in his judgment when one is ren- 
 dered, and in the compromise when one is made ; and the amount 
 specified in the one or in the other is the measure of the defend- 
 ant's liability.^" So an attorney employed to appeal from a judg- 
 ment claimed to be inadequate and failing has no lien on the land 
 awarded by such judgment.** Likewise, where the interest which 
 the plaintiff, an attorney, sought to recover — under an agTsement 
 with an heir to brilig the necessary actions to recover her interest in 
 an estate, which was afterwards sold by the heir to the defendant — 
 was her distributive interest as heir, as fixed by law, the attorney 
 could not recover it, under a statute giving an attorney a lien 
 upon his client's cause of action, which attaches to the judgment 
 in his favor, and which cannot be affected by settlement ; the inter- 
 est not being acquired by the heir by any suit*brought by plaintiff, 
 and the only suit brought by him for her being dismissed.*' 
 
 2 Mcintosh V. Bach, 110 Ky. 701, sin re Ross, 123 App. Div. 74, 107 
 
 62 S. W. 515. N. Y. S. 899. 
 
 8 Mcintosh V. Bach, 110 Ky. 701, 62 » Hall v. Lockerman, 127 Ga. 537, 56 
 
 S. W. 515. S. E. 759. 
 
 4 Mcintosh V. Bach, 110 Ky. 701, 62 loin re Jones, 76 Misc. 331, 136 N. 
 
 S. W. 515. Y. S. 819 ; Sidoway v. Jones, 125 Tenn. 
 
 5 Wendell v. Binninger, 132 App. 322, 143 S. W. 893. 
 
 Div. 785, 117 N. Y. S. 616. n in re Jones, 76 Misc. 331, 136 
 
 6 In re Robins, 61 Misc. 114, 112 N. Y. S. 819. 
 
 N. Y. S. 1032. 12 Elam v. Bond, 169 Mo. App. 584, 
 
 1 See In re Bobbins, 61 Misc. 114, 154 S. W. 880. 
 112 N. Y. S. 1032. 
 
1014 EIGHTS AND PEOPEETY AFFECTED BY LIEN. [§§ 616, 617 
 
 § 616. Cause of Action for Personal Tort. — In some juris- 
 dictions it has been held that, in the absence of express statutory 
 authority, an attorney's charging lien will not attach to a cause 
 of action for a personal tort ; ^* and it has been so held under a 
 statute which secured to attorneys a lien upon claims arising on 
 contracts, either express or implied.^* These decisions are usually 
 based upon the common-law doctrine of the nonassignability of 
 causes of action for injuries to the person, or upon the language 
 of local statutes.^^ On the other hand, in many states, a cause 
 of action for tort is held to be subject to an attorney's charging 
 lien *® from the commencement of the action ; " nor will such lien 
 be defeated by the settlement of the action prior to judgment.^' 
 But in other cases, while the right to a charging lien on a cause of 
 action for tort is not denied, it is held that the lien does not attach 
 until a verdict has been recovered, or a judgment has been entered 
 of record ; ^' these decisions, it would seem, have the effect of 
 destroying the lien upon the cause of action, and substituting there- 
 for a lien upon the judgment, verdict, or award.^" 
 
 § 617. When Lien Accrues. — As a general rule, the attor- 
 ney's charging lien attaches to his client's cause of action from the 
 commencement of the suit or proceeding in which he has been 
 retained,^ or from the time the adverse party had knowledge of 
 
 13 Boogren v. St. Paul City E. Co., N. W. 281, disapproving Abbott v. 
 
 97 Minn. 51, 106 N. W.«104, 114 Am. Abbott, 18 Neb. 503, 26 N. W. 361; 
 
 St. Rep. 691, 3 L.R.A.(N.S.) 379; Astrand v. Brooldyn Heights R. Co., 
 
 Cahill V. Cahill, 9 Civ. Proc. (N. Y.) 24 Misc. 92, 28 Civ. Proc. 113, 53 N. 
 
 241. Y. S. 294. 
 
 l*Wood V. Anders, 5 Bush (Ky.) W See the foUovping section. 
 
 601. 18 See infra, §§ 640-645. 
 
 15 Anderson v. Itasca Lumber Co., 19 See the following section. 
 86 Minn. 480, 91 N. W. 12, 291 ; 20 See infra, § 634. 
 
 Weller v. Jersey City H. & St. P. R. 1 Georgia. — Brown v. Georgia, C. & 
 
 Co., 66 N. J. Eq. 11, 57 Atl. 730; N. R. Co., 101 Ga. 80, 28 S. E. 634. 
 
 Randall v. Van Wagenen, 115 N. Y. Missouri. — Taylor v. St. Louis 
 
 527, 22 N. E. 361, 12 Am. St. Rep. 828. Transit Co., 198 Mo. 715, 97 S. W. 
 
 16 Smith V. Chicago, R. I. & P. R. 155; Smoot v. Shy, 159 Mo. App. 126, 
 Co., 56 la. 720, 10 N. W. 244; Kansas 139 S. W. 239. 
 
 Pac. R. Co. V. Thacher, 17 ICan. 92; 2Vew York. — N. Y. Judiciary Law, 
 
 Lewis V. Omaha St. R. Co., (Neb.) 114 § 475; Millis v. Pentelow, 92 Hun 284, 
 
§ 617] 
 
 EIGHTS AMD PEOPEE.TT ABTECTBD BT UlES. 
 
 1015 
 
 such commencement by service of process or otherwise,* or from 
 notice of the lien ; ' and the right of the defendant's attorney to a 
 lien usually begins with the filing of an answer containing a coun- 
 terclaim, or setting up any other affirmative defense, the success- 
 ful outcome of which will result in the retention or acquisition of 
 property, or property rights, to which the lien may attach.* In 
 some jurisdictions, however, the lien does not attach until a ver- 
 dict has been rendered,^ and in others, the lien only attaches when 
 judgment has been entered of record,* unless it is otherwise agreed 
 upon.^ In Kentucky, the statute provides that the attorney shall 
 have a lien "upon all claims or demands "put into his hands for 
 suit or collection." ' But when the lien once accrues, it relates 
 back to the commencement of the suit or proceeding,* and it con- 
 tinues to exist until it has been satisfied or otherwise released.*" 
 
 36 N. Y. S. 906; In re Albers Realty 
 Co., 140 App. Div. 277, 125 N. Y. S. 
 179; Keenau v. Dorflinger, 19 How. 
 Pr. 153; Shauneaay v. Traphagen, 13 
 N. Y. St. Eep. 754. 
 
 Tennessee. — Illinois Cent. E. Co. v. 
 Wella, 104 Tenn. 706, 59 S. W. 1041; 
 Tompkins v. Nashville, C. & St. L. 
 E. Co., 110 Tenn. 157, 72 S. W. 116, 
 100 Am. St. Eep. 795, 61 L.R.A. 340. 
 
 Utah. — Comp. Laws of Utah, § 135. 
 
 Prior to the commencement of the 
 suit or proceeding there is no lien 
 under the New York statute. In re 
 Albers Realty Co., 140 App. Div. 277, 
 125 N. Y. S. 179; In re Bobbins, 61 
 Misc. 114, 112 N. Y. S. 1032, affirmed 
 132 App. Div. 905, 116 N. Y. S. 1146. 
 
 2 Florida Cent. & P. E. Co. v. Eagan, 
 104 Ga. 353, .30 S. E. 745; Lumpkin v. 
 Louisville & N. E. Co., 136 Ga. 135, 
 70 S. E. 1101; Desaman v. Butler, 114 
 Minn. 362, 131 N. W. 463. 
 
 3 McEea v. Warehime, 49 Wash. 194, 
 94 Pac. 924. 
 
 And see sitpra, § 600. 
 * N. Y. Judiciary Law, § 475. 
 Comp. Laws of Utah, § 135. See 
 also supra, § 598. 
 
 5 Farmer v. Stillwater Water Co., 
 108 Minn. 41, 121 N. W. 418. 
 
 6 Illinois. — Henchey v. Chicago, 41 
 111. 136. 
 
 Rhode Island. — Tyler v. Superior 
 Court, 30 E. I. 107, 73 Atl. 467, 23 
 L.R.A.(N.S.) 1045. 
 
 Utah. — Sandberg v. Victor Gold & 
 Silver Min. Co., 18 Utah 66, 55 Pac. 
 74. 
 
 Washington. — Cline Piano Co. v. 
 Sherwood, 57 Wash. 239, 106 Pac. 742. 
 
 Wisconsin. — Courtney v. McGavock, 
 23 Wis. 619. 
 
 7 Grand Eapids & I. E. Co. v. Che- 
 boygan Circuit Judge, 161 Mich. 181, 
 126 N. W. 56, 17 Detroit Leg. N. 270; 
 Stearns v. Wollenberg, 51 Ore. 88, 92 
 Pac. 1079, 14 L.E.A.(N.S.) 1095. 
 
 8 Mcintosh V. Bach, 110 Ky. 701, 62 
 S. W. 515. But see Wood v. Anders, 5 
 Bush (Ky.) 601, wherein it was held 
 that an attorney has no lien prior to 
 judgment on a claim for unliquidated 
 damages in cases of tort. 
 
 9 Winchester v. Heiskell, 16 Lea 
 (Tenn.) 556. 
 
 ift Desaman v. Butler, 114 Minn. 
 362, 131 N. W. 463. 
 
1016 
 
 EIGHTS AND PROPEETY AFFECTED BY XIEIT. [§ 618 
 
 Money and Funds. 
 
 § 618. Funds in Hands of Adverse Party. — An attorney 
 had no lien at common law on money owing to his client which 
 was in the hands of the adverse party ; ^^ but a lien of this charac- 
 ter is now provided for in several jurisdictions by legislation.** 
 Thus where one working with a third person for a common pur- 
 pose, employed an attorney who, in the execution of that purpose, 
 created a fund in the hands of the third person, it was held that 
 the fund so created was subject to a lien for the attorney's com- 
 pensation whether the third person knew of his employment or 
 
 11 Adams Exp. Co. v. Adams, 1 Mae- 
 Arthur (D. C.) 642; Irwin v. Work- 
 man, 3 Watts (Pa.) 357; Balsbaugh 
 V. Frazer, 19 Pa. St. 95; Dubois' Ap- 
 peal, 38 Pa. St. 231, 80 Am. Dec. 478; 
 Qualcertown & E. R. Co. v. Guar- 
 antors' Liability Indemnity Co., 206 
 Pa. St. 350, 55 Atl. 1033; Patrick v. 
 Bingaman, 2 Pa. Sup^r. Ct. 113. See 
 also Cain v. Hockensmith Wheel & Car 
 Co., 157 Fed. 992. And see Thomson 
 V. Findlater Hardware Co., (Tex.) 
 156 S. W. 301. 
 
 12 United States. — See also Brown 
 V. Morgan, 163 Fed. 395. 
 
 Indiana. — Koons v. Beach, 147 Ind. 
 137, 45 N. E. 601, 46 N. E. 587. 
 
 Iowa. — Hurst v. Sheets, 21 la. 501; 
 Smith V. Chicago, E. I. & P. R. Co., 56 
 la. 720, 10 N. W. 244 ; Gibson v. Chi- 
 cago, M. & St. P. R. Co., 122 la. 565, 
 98 N. W. 474; Cheshire v. Des Moines 
 City R. Co., 153 la. 88, 133 N. W. 
 324. 
 
 Kansas. — Kansas Pac. R. Co. i;. 
 Thacher, 17 Kan. 92 ; Holmes v. Way- 
 mire, 73 Kan. 104, 9 Ann. Cas. 624, 84 
 Pac. 558; Anderson v. Metropolitan 
 St. E. Co., 86 Kan. 179, 119 Pac. 
 379. 
 
 Kentucky. — Johnson v. Breckin- 
 ridge, 4 Ky. L. Rep. 994. 
 
 Minnesota. — Weicher v. Cargill, 86 
 Minn. 271, 90 N. W. 402. 
 
 Michigan. — Lindner v. Hine, 84 
 Mich. 511, 48 N. W. 43; Bigelow v. 
 Sheehan, 161 Mich. 667, 126 N. W. 
 707, 17 Detroit Leg. N. 422; Wipfler v. 
 Warren, 163 Mich. 189, 128 N. W. 
 178, 17 Detroit Leg. N. 905. 
 
 Missouri. — Young v. Renshaw, 102 
 Mo. App. 173, 76 S. W. 701; Conkling 
 V. Austin, 111 Mo. App. 292, 86 S. W. 
 911. 
 
 Nebraska. — Cones v. Brooks, 60 
 Neb. 698, 84 N. W. 85; Gordon v. 
 Hennings, 89 Neb. 252, 131 N. W. 
 228. 
 
 New York. — In re Williams, 187 N. 
 Y. 286, 79 N. E. 1019, reversing 107 
 App. Div. 627, 95 N. Y. S. 1166; 
 Canary v. Russell, 10 Misc. 597, 24 
 Civ. Proc. 109, 31 N. Y. S. 291. 
 
 Washington. — McRea v. Warehime, 
 49 Wash. 194, 94 Pac. 924. 
 
 Services Rendered outside of the 
 State. — The Washington statute, 
 which gives an attorney a lien on 
 money in the hands of the adverse 
 party, applies only where there is an 
 action or proceeding pending within 
 the state. Plummer v. Great North- 
 ern R. Co., 60 Wash. 214, 110 Pac. 
 989, 31 L.R.A.(N.S.) 1215. 
 
§ 619] EIGHTS ANB PEOPEETT AFFECTED BY LIEN-. 1017 
 
 not.^* So, it has been held that an attorney employed by the 
 mother of an illegitimate child, to assist in the prosecution of pro- 
 ceedings in bastardy, is entitled to a lien upon the fund recov- 
 ered.** In some jurisdictions it is expressly provided that the 
 attorney shall have a lien on money or funds in the hands of the 
 adverse party, or third persons ; and in others it has been held that, 
 even without such a provision, the language of the statute neces- 
 sitates such a holding. Indeed, charging funds due the client with 
 an attorney's lien would seem to be the natural and logical sequence 
 of those statutes which provide for a lien on the client's cause of 
 action,*^ or on a judgment recovered for the client ; *° and this fact 
 is emphasized by provisions which make the attorney's lien effec- 
 tive notwithstanding the settlement of the matter in dispute by 
 the parties." For, unless the money or fund in the hands of the 
 adverse party, or other person to whom it may come, is subject to 
 the attorney's charging lien on the cause of action, or the judg- 
 ment, it is evident that, in some instances at least, the lien would 
 be futile — a mere right without a remedy. 
 
 Consideration will be given hereafter to funds realized from 
 the disposition of property,*' or judgments,*® which were subject 
 to the attorney's lien ; and also to funds realized by way of settle- 
 ment with the client.^" It has been said, however, that as the 
 lien is in derogation of common law, it will be allowed only when 
 the facts bring the case within the exact terms of the statute.* 
 
 § 619. Funds in Hands of, or Owing to, Executors, Ad- 
 ministrators, or Trustees. — The right of an attorney to a charg- 
 ing lien is not affected by the fact that his client is an executor, 
 administrator, or trustee.* So, an attorney will be entitled to a 
 
 l8Bigelow V. Sheehan, 161 Mich. ^oSee infra, § 640. 
 
 667, 126 N. W. 707, 17 Detroit Leg. N. i KauflFman v. Phillips, 154 la. 542, 
 
 422. 
 
 134 N. W. 575. 
 
 1* Coatiean v. Stewart, 76 Kan. 353, „ . , „ .r, . . „ 
 
 91 Pac. 83, 11 L.R.A.(N.S.) 630. , Arkansas-Turner v. Tapscott, 30 
 
 15 See supra, § 613. 
 
 16 See infra, § 634. Iowa.— -poss v. Cobler, 105 la. 728, 
 " See infra, §§ 640-645. '^^ N. W. 516. 
 
 18 See infra, 626. Massachusetts. — Newell v. West, 
 
 19 See infra, § 648. 149 Mass. 520, 21 N. E. 954. 
 
1018 
 
 EIGHTS AND PROPERTY AFFECTED BY LIEN. [§ 619 
 
 charging lien on money in the hands of an executor, administra- 
 tor, or trustee, for services wherehy he recovers a judgment against 
 such persons in a representative capacity, or against the estate 
 which they represent.' As a general rule, however, no lien is 
 acquired against the estate of a decedent, or a cestui que trust, for 
 services rendered at the instance of those who represent the estate ; 
 such services should be paid for in the first instance, and, being so 
 paid, the representative may seek allowance from the estate.* 
 It is certain that no lien can accrue against an estate for services 
 rendered for the individual benefit of its representative ; ° nor 
 should a lien be allowed for services rendered in derogation of 
 the rights of legatees and general creditors.® So, it has been held 
 that attorneys who were employed to recover damages for personal 
 injuries, are not entitled to compensation out of a fund paid to 
 the executors of their client, who died pending suit, because such 
 fund is in settlement of the damages suffered by the estate, and 
 not those suffered by the decedent.' 
 
 551, 68 N. E. 1114; Matter of Crouch, 
 41 Misc. 349, 84 N. Y. S. 936. 
 
 Pennsylvania. — Newbaker v. Al- 
 ricks, 5 Watts 183; Clark's Appeal, 
 93 Pa. St. 369, distinguishing Sny- 
 der's Appeal, 54 Pa. St. 67. 
 
 Tennessee. — Read v. Bostick, 6 
 Humph. 321. 
 
 Vermont. — Hurlbert v. Brigham, 56 
 Vt. 368. 
 
 5 Koons V. Beach, 147 lud. 137, 45 
 N. E. 601, 46 N. E. 587. 
 
 * In re Lamberson, 63 Barb. (N. Y.) 
 297; Matter of Smith, 111 App. Div. 
 23, 35 Civ. Proc. 314, 97 N. Y. S. 171. 
 See also In re Memphis Gaslight Co. 
 Cases, 105 Tenn. 268, 60 S. W. 206, 80 
 Am. St. Rep. 880. 
 
 6 Lawrence v. Townsend, 88 N. Y. 
 24. 
 
 8 January v. Mansell's Adm'r, 4 
 Bibb (Ky.) 566; Kerngood v. Jack, 
 38 Misc. 309, 77 N. Y. S. 865. 
 
 " In re Carrig's Estate, 36 Misc. 612, 
 73 N. Y. S. 1123. 
 
 -Dennis v. Kent Cir. 
 Judge, 42 Mich. 249, 3 N. W. 950. 
 
 Mississippi. — dlopton ;;. Gholaon, 53 
 Miss. 466; Perry -Mason Shoe Co. v. 
 Sykes, 72 Miss. 399, 17 So. 171, 28 
 L.R.A. 277. 
 
 New York. — Bowman v. Tallman, 
 2 Robt. 385; Matter of Knapp, 85 N. 
 Y. 284, distinguishing Austin v. Mun- 
 roe, 47 N. Y. 360; Matter of Williams, 
 187 N. Y. 286, 79 N". E. 1019; Matter 
 of Holland Trust Co., 76 Hun 323, 27 
 N. Y. S. 687; Lee v. Van Voorhis, 78 
 Hun 575, 29 N. Y. S. 571, affirmed 
 145 N. Y. 603, 40 N. E. 164; Gunning 
 V. Quinn, 81 Hun 522, 30 N. Y. S. 
 1015, affirmed 153 N. Y. 659, 48 N. E. 
 1104; Krone v. Klotz, 3 App. Div. 
 587, 38 N. Y. S. 225; Matter of King, 
 61 App. Div. 152, 70 N. Y. S. 356; 
 Matter of Smith, 111 App. Div. 23, 97 
 N- Y. S. 171; Arkenburgh v. Arken- 
 burgh, 27 Misc. 760, 59 N. Y. S. 612, 
 affirmed without opinion 176 N. Y. 
 
§§ 620, 621] EIGHTS AND PEOPEETY AFFECTED BY LIEN. 1019 
 
 § 620. Legacies and Distributive Shares. — That the fund, 
 as against which it is sought to establish a charging lien, consti- 
 tutes a legacy or distributive share of a decedent's estate, is im- 
 material. Thus, it has been held that an attorney is entitled to a 
 lien on a legacy due his client for services rendered in the estab- 
 lishment,' or setting aside,* of a will. So, an attorney's lien will 
 attach to a surplus due to heirs from the proceeds of a sale of a 
 decedent's estate for the payment of debts.*" An attorney may 
 also maintain a lien on funds, in the hands of an administrator, 
 for services rendered in the collection of assets due the estate, 
 at the request of the sole heir thereof.** So, an attorney will be 
 entitled to an equitable lien under an agreement whereby he was 
 to be paid a stipulated fee, contingent upon success, for services 
 rendered in a vsdll contest, "out of the funds secured from the 
 estate." *^ And it has been held that a contract to pay an attor- 
 ney a stipulated fee "in case the will is defeated and our clients 
 get their shares" will entitle the attorney to an equitable lien 
 where the will which, as previously construed, disinherited such 
 clients, was so qualified that the clients received thereunder a 
 larger proportion of the estate than if the testator had died intes- 
 tate." 
 
 § 621. Attached Funds. — Where funds are attached in an 
 attorney's hands he may, of course, retain therefrom such fees as 
 may be due him, providing he has a lien therefor ; ** but not other- 
 wise.*^ Thus, under a statute which provided for a lien upon 
 money belonging to the client "in the hands of the adverse party 
 in an action or proceeding in which the attorney was employed," 
 it was held that the defendant's attorney was not entitled to a lien 
 
 8 Fuller V. Cason, 26 Fla. 476, 7 So. 18 IngersoU v. Coram, 211 U. S. 335, 
 870. 29 S. Ct. 92, 53 U. S. (L. ed.) 208. 
 
 9 Johnson r. Breckinridge, 4 Ky. L. " Ingersoll v. Coram, 211 U. S. 
 Rep. 994; In re Hoyt, 12 Civ. Proc. ^^^' ^9 S. Ct. 92, 53 U. S. (L. ed.) 
 
 208, 5 Dem. 432, 8 N. Y. St. Rep. 786. 
 
 208. 
 
 ■■., T, , „ . , TT , ** See supra, § 301. 
 
 "Read i\ Bostiek, Humph. ,,_ _ , „ „„ m ^>» 
 
 ' '^ 15 Lucas V. Campbell, 88 111. 447 ; 
 
 (Tenn.) 321. jj^j^y ^_ Hancock, (Tex.) 77 S. W. 
 
 11 Koons V. Beach, 147 -id. 137, 45 658. And see McDonald v. The Cabot, 
 
 N. E. 601, 46 N. E. 587. Newb. 348, 16 Fed. Cas. No. 8,759. 
 
1020 EIGHTS AND PEOPEETY AFFECTED BY LIEN. [§ 622 
 
 on funds which the plaintiff had caused to be garnished in the 
 hands of a third party. Said the court : "This money was neither 
 in the hands of the attorney nor in the hands of the adverse party. 
 It was money in the hands of a third party, who, it is true, had 
 been garnished in the action in which Lane was employed, but 
 who was still in possession of the fund. It had never been paid 
 into court, but was held by the garnishee at the request of the 
 attorney of the attaching plaintiff. Even if it had been paid into 
 court, it would not fall within the letter of the statute which gives 
 a lien only upon money in the hands of the attorney himself, or 
 in the possession of the adverse party." ^* Of course, it will be 
 recalled that as to money in his possession, the attorney is entitled 
 to a retaining lien for his compensation." 
 
 § 622. Appropriations and Other Government Funds. — 
 
 An attorney's lien for services rendered cannot be asserted against 
 money appropriated to his client by an act of the legislature while 
 such money is in the custody of the state treasurer. Indeed, it 
 may well be doubted if, in any case, an attorney's lien can be suc- 
 cessfully asserted against money appropriated by the legislature 
 to any person or corporation, public or private, while in the hands, 
 or under the control, of an officer of the state. It would be con- 
 trary to good public policy and detrimental to the due adminis- 
 tration of the affairs of the state to permit its officers to be harassed 
 and hindered in the discharge of their duties by parties asserting 
 rights, either by way of attorney's liens, attachments, garnishment 
 proceedings, or otherwise, to such funds.*' Thus, it has been 
 held that money appropriated by the legislature to reimburse an 
 election contestant for his expenses, is not subject to an attorney's 
 
 le Phillips V. Hogue, 63 Neb. 192, upon the United States shall be void 
 
 88 N. W. 380. unless made with certain formalities, 
 
 17 See infra, § 638. And see also it has been held that no lien on a 
 supra, §§ 537-577. judgment against the United States 
 
 18 State V. Moore, 40 Neb. 854, 59 exists by implication in favor of an 
 N. W. 755, 25 L.R.A. 774. attorney for prosecuting the same un- 
 
 Claims against United States. — der a special agreement for an in- 
 
 (Jnder U. S. Rev. State., § 3477 (2 terest therein. Manning v. Leighton, 
 
 Fed. St. Ann. 7), providing that all 65 Vt. 84, 26 Atl. 258, 24 L.R.A. 
 
 transfers and assignments of claims 684. 
 
§ 623] EIGHTS AND PKOPEETY AFFECTED BY LIEN. 1021 
 
 charging lien.^* !N"or does a statute giving an attorney a lien on 
 claims put in his hands for collection, authorize the retention of 
 money collected for the state, where it is also provided by law that 
 all public moneys shall be paid into the state treasury.*" So, it 
 has been held that, in the absence of legislative authority, the gov- 
 ernor of a state has no power to employ counsel to represent the 
 state so as to entitle such counsel to a statutory lien for his com- 
 pensation.^ And it has also been held that where a party under- 
 takes, on behalf of himself and other taxpayers of a county, to 
 prevent the illegal expenditure of money, or to recover money 
 illegally expended, he cannot, without direct statutory authority, 
 expect his attorneys to be paid by the county. The sum expended 
 by him is simply a contribution made towards good government, 
 and he must find his recompense in the conviction that he has per- 
 formed his duty as a citizen ; and an attorney who undertakes 
 such employment must look alone to the taxpayer who employed 
 him.* 
 
 § 623. Money Paid into Court. — In several jurisdictions 
 wherein the right of an attorney to a charging lien for his services 
 is recognized, either as a matter of general law or by legislation, 
 money or funds paid into court as the result of the attorney's serv- 
 ices will be charged with a lien for his compensation.^ ISTotice 
 of an application to withdraw a fund from court should be given 
 to an attorney who has a lien upon it ; * and where a fund so 
 charged has been withdrawn from the court in fraud of the at- 
 torney's rights with respect thereto, the court has power to recall 
 it, upon a satisfactory showing that the withdrawal was irregular.* 
 But it has been held, in those states which do not recognize a 
 charging lien, that the mere fact that money has been paid into 
 
 iSHallam o. Coulter, 115 Ky. 313, McDonald v. Napier, 14 Ga. 89; At- 
 
 73 S. W. 772, 24 Ky. L. Eep. 2200. lantic Sav. Bank v. Hetterick, 5 
 
 2i>Hendriek v. Posey, 104 Ky. 8, 45 Thomp. & C. (N. Y.) 239; Ford v. 
 
 S. W. 525, 46 S. W. 702, 20 Ky. L. Gilbert, 44 Ore. 259, 75 Pac. 138. 
 
 Eep. 359. 4 Dennis v. Kent Cir. Judge, 42 
 
 1 Compton V. State, 38 Ark. 601. Mich. 249, 3 N. W. 950. 
 
 2 Marion County v. Rives, 133 Ky. 5 Dennis v. Kent Cir. Judge, 42 
 477, 118 S. W. 309. Mich. 249, 3 N. W. 950. 
 
 3 Randall v. Archer, 5 Fla. 438; 
 
1022 EIGHTS AND PEOPEETT AFFECTED BT LIBIT. [§ 624 
 
 court does not authorize the imposition of a lien thereon in favor 
 of the attorney, even though such payment resulted from his serv- 
 ices.* 
 
 § 624. Fund in Equity. — It is well settled that an attorney 
 is entitled to compensation out of a fund which has been brought 
 into a court of equity by his aid, and to which he looks for pay- 
 ment.'' Strictly speaking, perhaps, the fund is not actually 
 charged with a lien ; indeed, it is rather in the nature of an equi- 
 table allowance; but it has the effect of a lien, and is frequently 
 spoken of as such.* Thus, under a state law which gave an attor- 
 ney a lien upon the cause of action of his client which attached 
 "to the proceeds thereof in whosesoever hands they may come," 
 and which might be enforced by a suit in equity against the client 
 or any party holding the proceeds, it was held that the attorneys 
 for a stockholder in suits brought on behalf of all the stockholders 
 against certain directors of a corporation, to compel them to ac- 
 count for and pay over to the corporation the amount of illegal 
 dividends declared and paid by them from the capital, as a result 
 of which the defendants paid over a large sum to the corporation, 
 are entitled to a lien on the fund so created for their services.' In 
 
 6 Appeal of Dubois, 38 Pa. St. 23], 257, 18 U. S. App. 27, 6 C. C. A. 326; 
 80 Am. Dee. 478; Thompson v. Boyle, In re Baxter, 154 Fed. 22, 83 C. C. A. 
 85 Pa. St. 477; Quakertown & E. K. 106. 
 
 Co. V. Guarantors' Liability Indemni- Alabama. — Strong v. Taylor, 82 
 
 ty Co., 206 Pa. St. 350, 55 Atl. 1033; Ala. 213, 2 So. 760; Higley v. White, 
 
 Patrick v. Bingaman, 2 Pa. Super. 102 Ala. 604, 15 So. 141; Kelly v. 
 
 Ct. 113; Scybert v. Salem Tp., 22 Pa. Horsely, 147 Ala. 508, 41 So. 902. 
 
 Super. Ct. 459. See also Cain v. Pennsylvania. — Spencer's Appeal, 6 
 
 Hockensmith Wheel & Car Co., 157 Sad. 488, 9 Atl. 523; McKelvy's Ap- 
 
 Fed. 992. peal, 108 Pa. St. 615; Price's Appeal, 
 
 7 See supra, §§ 477-479. 116 Pa. St. 410, 9 Atl. 856; Patrick «. 
 ^United States. — Wolfe v. Lewis, Bingaman, 2 Pa. Super. Ct. 113; 
 
 19 How. 280, 15 U. S. (L. ed.) 643; Seybert v. Salem Tp., 22 Pa. Super. 
 
 Central R. & Banking Co. v. Pettus, Ct. 459. 
 
 113 U. S. 116, 5 S. Ct. 387, 28 U. S. West Virginia. — Weigand v. Alli- 
 
 (L. ed.) 915; Ex p. Plitt, 2 Wall. Jr. ance Supply Co., 44 W. Va. 133, 28 S. 
 
 (C. C.) 453, 19 Fed. Cas. No. 11,228; E. 803. 
 
 Mahone «. Southern Tel. Co., 33 Fed. 9Meighan v. American Grass Twine 
 
 702; Adams v. Kehlor Milling Co., 38 Co., 154 Fed. 346, 83 C. C. A. 124. 
 
 Fed. 281; Blair v. Harrison, 57 Fed. 
 
§§ 625, 626] EIGHTS AND PEOPEBTY AFFECTED BY LIEN. 1023 
 
 such cases the amount to which the attorney is entitled may be 
 determined by the court itself, or through an auditor ; the matter 
 need not be referred to the jury." But it is essential, in most 
 cases at least, that the client should be entitled to participate in 
 the fund." 
 
 § 625. Attorney's Aid and Client's Participation Neces- 
 sary. — In order that an attorney may be entitled to a lien on 
 funds, either in courts of law or equity, it is, as a general rule at 
 least, essential that such funds were procured with the aid of the 
 attorney's services.** An attorney's interest can be no greater 
 than that of his client,*' and he will not be entitled to a lien as 
 against funds in the distribution of which his client did not par- 
 ticipate,** or the procurement of which he resisted.** 
 
 § 626. Lien Follows Fund. — As a general rule, an attorney's 
 charging lien will follow the fund to which it has attached, and 
 cling to any property into which it can be traced, at least until 
 it reaches the hands of a bona fide purchaser.*® Thus, where a 
 plaintiff in foreclosure proceedings took land instead of money, 
 
 lOMeKelvy's Appeal, 108 Pa. St. Miohigan. — Canney v. Caiiney, 131 
 
 615. Mich. 363, 91 N. W. 620, 9 Detroit 
 
 11 See infra, § 625. Leg. N. 356. 
 
 12 Fulton V. Harrington, 7 Houst. 'iSew York. — Matter of Brackett, 
 (Del.) 182, 30 Atl. 856; Com. v. Me- 114 App. Div. 257, 99 N. Y. S. 802, 
 chanics' Mut. Fire Ins. Co., 122 Mass. affirmed 189 N. Y. 502, 81 N. E. 1160; 
 421 ; Lindner v. Hine, 84 Mich. 511, Mooney v. Mooney, 29 Misc. 707, 7 N. 
 48 N. W. 43 ; Schmertz v. Hammond, Y. Ann. Cas. 257, 62 N. Y. S. 769. 
 
 51 W. Va. 408, 41 S. E. 184. Oreffow.— Ford v. Gilbert, 44 Ore. 
 
 13 Baltimore & 0. K. Co. v. Brown, 259, 75 Pac. 138. 
 
 79 Md. 442, 29 Atl. 524; Moses v. West Virginia. — Schmertz v. Ham- 
 
 Ocoee Bank, 1 Lea (Tenn.) 398. mond, 51 W. Va. 408, 41 S. E. 184. 
 
 1* United States. — Gregory v. Pike, 16 Lehman v. Tallasaee Mfg. Co., 64 
 
 67 Fed. 837, 21 U. S. App. 658, 15 C. Ala. 567; Ball v. Vason, 56 Ga. 264; 
 
 C. A. 33. Thompson v. Thompson, 65 S. W. 457, 
 
 Georgia. — Waters v. Greenway, 17 23 Ky. L. Eep. 1535. 
 Ga. 592 ; Mitchell v. Atkins, 71 Ga. 16 Noftzger v. Moflfett, 63 Kan. 354, 
 
 681. 65 Pac. 670; Conlding v. Austin, 111 
 
 Kentucky.— WsLthen v. Russell, 47 Mo. App. 292, 86 S. W. 911. 
 S. W. 437, 20 Ky. L. Eep. 709. 
 
1024 EIGHTS AND PKOPEETY AFFECTED BY LIEN. [§ 627 
 
 the attorney's lien attached to the land." So, where an attorney 
 was retained to collect certain demands out of which he was to 
 be paid, andj pending suit, the client purchased land from the 
 defendant for the amount of the claim, it was held that the at- 
 torney had an equitable lien on the land.*' !N"or can the lien be 
 defeated by fraud or artifice in transactions of this kind.*® 
 
 Real and Personal Property. 
 
 § 627. Lien on Land in Absence of Statute. — In the ab- 
 sence of statutory authority therefor, an attorney's charging lien 
 does not attach to his client's land, even though it may have been 
 the subject-matter of the litigation wherein the lien accrued,^" 
 excepting, possibly, under an express contract providing for such 
 a lien.* It has been held, however, that an attorney's charging 
 lien attached to a decree, for a certain sum, which charged a lien 
 on land in default of payment within a certain time.^ And it has 
 also been held that the charging lien will be transferred to land 
 taken by the client in satisfaction of a judgment,^ or a claim for 
 
 17 Porter v. Hanson, 36 Ark. 59] . Iowa. — Keehn v. Keehn, 115 la. 467, 
 See also Loofbourow v. Hicks, 24 88 N. W. 957. 
 
 Utah 49, 66 Pac. 602, 55 L.R.A. 874. jSTonsos.— Holmes v. Waymire, 73 
 
 18 Fitzgerald's Ex'r v. Irby, 99 Va. Kan. 104, 9 Ann. Cas. 624, 84 Pac. 
 81, 37 S. E. 777, 3 Va. Sup. Ct. Rep. 558. 
 
 1. See also Mcintosh v. Bach, 110 Louisiana.— Mechamcs' & Traders' 
 
 Ky. 701 62 S. W. 515. ^"^' ^°- *'• Levi, 40 La. Ann. 135, 3 So. 
 
 19 Conkling v. Austin, 111 Mo. App. ^^^• 
 
 292 86 S W 911 Mississippi. — Stewart v. Flowers, 
 
 20 Alalama.-mnson v. Gamble, 65 "4 Miss. 513, 7 Am. Eep. 707; Martin 
 Ala. 605; Lee v. Winston, 68 Ala. "■ Harrington 57 Miss. 208 
 
 ,„^ ,.. ^ „ , ^, „.. ,, Fermonf.—Smalley «;. Clark, 22 Vt. 
 
 402 ; McCullough v. Flournoy, 69 Ala. ■' 
 
 189; McWilliams v. Jenkins, 72 Ala. ^^^^ Virginia.-Foy^ler v. Lewis' 
 
 480; Higley v. White, 102 Ala. 604, 15 ^^^.^^ gg ^ ^a. 112, 14 S. E. 447; 
 
 So. 141; Kelly v. Horsely, 147 Ala. -^^^^ ^ p^^gj.^ 36 w. Va. 200, 14 S. 
 
 508, 41 So. 902; Carroll v. Draughon, e, ggg. McCoy v. McCoy, 36 W. Va. 
 
 154 Ala. 430, 45 So. 919. 772^ 15 s. E. 973. 
 
 Illinois.— Humphrey v. Browning, i gee the following section. 
 
 46 HI. 476, 95 Am. Dec. 446; La 2 Higley v. White, 102 Ala. 604, 15 
 
 Framboise i'. Grow, 56 111. 197; Smith So. 141. 
 
 V. Young, 62 111. 210. s See infra, % 634. 
 
§§ 628, 629] EIGHTS AND PEOPEETY AFFECTED BY LIEN. 1025 
 
 money.* In this connection it will be recalled that an attorney's 
 charging lien on a judgment recovered for his client has been 
 recognized in some jurisdictions as a common-law right/ and it 
 naturally follows that where such judgment is, under the local 
 law, a lien on the adversary's land, the attorney's charging lien 
 also becomes, though indirectly, a charge thereon. 
 
 § 628. Lien Created by Contract. — In some jurisdictions a 
 lien may be created by a contract, between the attorney and his 
 client, whereby it is expressly agreed that the attorney is to have 
 a lien upon land as security for the payment of his compensation,® 
 or whereby the attorney is given an undivided interest in land 
 to be recovered.' Thus, in Louisiana, it was held that, although a 
 conveyance of land to an attorney for compensation for profes- 
 sional services was void, the attorney, nevertheless, was entitled to 
 a privilege on the land for such sums as were expended by him 
 for the client's benefit.' But a contract under which an attorney 
 was to be compensated "out of the purchase money to be received 
 from the sale of property," was held not to create a lien on the 
 property.® So, where the owner of land, which had been con- 
 demned for public use, agreed to pay his attorney a share of the 
 award which was "to be a lien on the property," it was held that 
 such contract was not effective as against one who, pending the 
 condemnation proceedings, had procured a decree against the 
 landowner for the specific performance of a contract of sale for 
 the land in question, "subject to the judgment of condemnation." '" 
 
 § 629. Lien on Land by Virtue of Statute. — The right of 
 an attorney to a charging lien for his services as against land 
 
 * Porter v. Hanson, 36 Ark. 59]. as to the creation of a lien by contract 
 
 See also Mcintosh v. Bach, 110 ICy. generally. 
 
 701, 62 S. W. 515. And see supra, 1 Hoifman v. Vallejo, 45 Cal. 564. 
 
 § 626. 8 Hodges v. Ory, 48 La. Ann. 54, 18 
 
 BSee infra, § 634. So. 899. 
 
 « Mackall v. Willoughby, 167 U. S. 9 Weiss v. Gullett, 18 Colo. App. 
 
 681, 17 S. Ct. 954, 42 U. S. (L. ed.) 122, 70 Pac. 442. 
 
 323; Smith v. Young, 62 111. 210; " Grigg v. McNulty, 5 Misc. 334, 
 
 Adams v. Schmitt, 68 N. J. Eq. 168, 25 N. Y. S. 504. 
 60 Atl. 345. And see supra, § 583, 
 Attya. at L. Vol. II.— 65. 
 
1026 
 
 EIGHTS AND PKOPEETY AFFECTED BY LIEN. 
 
 [§ 630 
 
 ■which is the subject-matter of litigation, in which he has heen re- 
 tained, is now recognized by legislation in many states ; ^^ and 
 such lien will not be affected by the conveyance of the land pend- 
 ing suit.^^ In the event of such conveyance, it has been held that 
 the attorney's lien should be satisfied out of property in the in- 
 verse order of alienation.*' Of course, an attorney's lien cannot 
 exist with respect to property to which his client has neither claim 
 nor title.** 
 
 § 630. Necessity of Recovery. — It has been held under 
 statute prevailing in some jurisdictions that, in order to be en- 
 titled to a charging lien as against land, it is essential, not only 
 that the land should be the subject-matter of the litigation, but, 
 also, that it must have been "recovered" therein.** Where this 
 rule obtains, a lien will not arise from the mere fact that the at- 
 
 11 Arkansas. — Porter v. Hanson, 36 
 Ark. 591; Lane v. Hallum, 38 Ark. 
 385; McCain v. Portia, 42 Ark. 402; 
 Hershy v. Duval, 47 Ark. 86, 14 S. W. 
 469; Greer v. Ferguson, 56 Ark. 324, 
 19 S. W. 966; Greenlee v. Rowland, 85 
 Ark. 101, 107 S. W. 193. 
 
 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. Kep. 
 567. 
 
 Georgia. — Usry v. Usry, 64 Ga. 579 ; 
 Fry V. Calder, 74 Ga. 7; Strohecker 
 V. Irvine, 76 Ga. 639, 2 Am. St. Rep. 
 62; Wooten v. Denmark, 85 Ga. 578, 
 11 S. E. 861; Lovett v. Moore, 98 Ga. 
 158, 26 S. E. 498. 
 
 Indiana. — Wood v. Hughes, 138 Ind. 
 179, 37 N. E. 588. 
 
 Kentucky. — Mcintosh v. Bach, 110 
 Ky. 701, 62 S. W. 515. See also Reid 
 V. Punch, 2 Ky. L. Rep. 62. 
 
 New York. — N. Y. Judiciary Law, 
 § 475 ; Grigg v. McNulty, 5 Misc. 334, 
 25 N. Y. S. 504 ; Skinner v. Busse, 38 
 Misc. 265, 11 N. Y. Ann. Cas. 156, 77 
 N. Y. S. 560. 
 
 Tennessee. — Hunt v. McClanahan, 1 
 
 Heisk. 503; Perkins v. Perkins, 9 
 Heisk. 95; Sharp v. Fields, 5 Lea 
 326; Hill V. Hill, 62 S. W. 209. 
 Tt is not clear whether, in this 
 state, the lien exists on land by virtue 
 of statutory authority or not. 
 
 Texas. — Chapman v. Sneed, 17 Tex. 
 428; Wade v. Flanary, 108 S. W. 506, 
 reversed as to other points, 102 Tex. 
 63, 113 S. W. 8. 
 
 Utah. — Comp. Laws of Utah, § 135. 
 
 12 McCain v. Portis, 42 Ark. 402; 
 Lovett V. Moore, 98 Ga. 158, 26 S. E. 
 498; Hunt v. McClanahan, 1 Heisk. 
 (Tenn.) 503; Sharp v. Fields, 5 Lea 
 (Tenn.) 326. 
 
 13 Butts V. Carey, 143 App. Div. 
 356, 128 N. Y. S. 533. See also 
 Morrison i>. Ponder, 45 Ga. 167. 
 
 11 Joseph's Adm'r v. Lapp's Adm'r, 
 78 S. W. 1119, 25 Ky. L. Rep. 1875; 
 In re Brackett, 114 App. Div. 257, 99 
 N. Y. S. 802, affirmed 189 N. Y. 502, 
 81 N. E. 1160. See also La Fram- 
 boise V. Grow, 56 111. 197. 
 
 16 Eginton v. Rusk, 3 Ky. L. Rep. 
 689. 
 
§ 630] EIGHTS AND PROPERTY AFFECTED BY LIEN. 1027 
 
 tomey successfully defended his client's title, ^' or aided in the 
 removing of a cloud therefrom, *'' or prevented the establishment 
 of a resulting trust thereon." ISTor will a charging lien accrue 
 for services rendered to a grantee in a suit brought by his grantor 
 to rescind the sale.'® So, it has been held that an attorney is not 
 entitled to a charging lien against land by merely averting a forced 
 sale thereof.^" And where the client's right to land has been 
 established on condition that he pay the defendant a certain sum, 
 it seems that such payment will be a condition precedent to the 
 right of the attorney to have a lien charged on the land.' But 
 land purchased by a mortgagor in foreclosure proceedings has been 
 said to be "recovered." * And where an attorney, at the instance 
 of minority stockholders, restored property to the corporation 
 which had been fraudulently disposed of by its officers, it was held 
 that the attorney "recovered" the property, and was entitled to a 
 lien thereon.' So, where a client's land was taken possession of 
 by his adversary, under a decision of the trial court, and such 
 decision was reversed on appeal, whereupon the possession was sur- 
 rendered to the client, it was held that the client "recovered" the 
 land.* And where an attorney's compensation, under a contract 
 with his client, was dependent on the recovery of certain land, it 
 was held that the agreement should be liberally construed, and 
 that land which, in consequence of the attorney's services, came 
 into the client's possession, and was held by him without inter- 
 ruption, was, in fact, "recovered." " 
 
 16 Greer v. Ferguson, 56 Ark. 324, l Usry v. Usry, 64 Ga. 579. 
 
 19 S. W. 966; Greenhill v. Bowling's ^Wooten v. Denmark, 85 Ga. 578, 
 
 Adra'r, 13 Ky. L. Eep. 495; Lytle v. 11 S. E. 861. 
 
 Bach, 93 S. W. 608, 29 Ky. L. Rep. » Grant v. Lookout Mountain Co.„ 
 
 424. 93 Tenn. 691, 28 S. W. 90, 27 L.R.A. 
 
 " Hershy v. Du Val, 47 Ark. 86, 14 98. 
 S. W. 469. * Greenlee v. Rowland, 85 Ark. 101, 
 
 "Garner v. Garner, 1 Lea (Tenn.) 107 S. W. 193. 
 29. 5Mackall v. Willoughby, 167 U. S. 
 
 WEginton V. Rusk, 3 Ky. L. Eep. 681, 17 S. Ct. 954, 42 U. S. (L. ed.) 
 689. See also Landreth v. Powell, 122 323. 
 Tenn. 195, 121 S. W. 500. 
 
 20Hodnett v. Bonner, 107 Ga. 452, 
 33 S. E. 416. 
 
1028 EIGHTS AND PEOPEETY AFPECTED BY LIEN. [§§ 631, 632 
 
 § 631. Partition Proceedings. — In most jurisdictions pro- 
 vision is made by statute for the payment of counsel fees in par- 
 tition proceedings, especially where they are ex parte. The com- 
 pensation so provided for is usually taxed as part of the costs,* or 
 charged as a lien upon the land.'' But in some states an attorney 
 is not entitled to a lien for services rendered by him in partition 
 proceedings,' nor can the allotment of land in such a proceeding 
 be said to be a recovery thereof.® ISox is the attorney of a de- 
 fendant entitled to a lien in case of settlement."* Of course, it is 
 possible that partition proceedings may be included in those stat- 
 utes, prevailing in some jurisdictions, which provide for a lien 
 upon the client's cause of action or judgment.*^ 
 
 § 632. Homesteads. — That the property, in connection with 
 which professional services have been rendered, is a homestead, 
 does not make it any the less subject to an attorney's charging 
 lien.^^ And where an attorney prevented the sale of a homestead 
 under an attachment, and procured the rescission of a fraudulent 
 conveyance thereof, it was held that he was entitled to a lien on 
 the theory that he had "recovered" the property.^' But an appli- 
 
 6 See supra, § 479. See also Hab- 901 ; Cozzens v. Whitney, 3 R. I. 
 
 berston v. Habberston, 156 111. 444, 41 79. 
 
 N. E. 222 ; Potts V. Gray, 60 Miss. 57 ; 9 Gibson v. Buckner, 65 Ark. 84, 44 
 
 HofTman v. Smith, 61 Miss. 544; Neb- S. W. 1034. And see supra, §. 630. 
 
 lett V. Neblett, 70 Miss. 572, 12 So. See also Horn v. Horn, 115 App. Div. 
 
 598. 292, 100 N. Y. S. 790. 
 
 TCreighton v. Ingersoll, 20 Barb. lo Horn t). Horn, 135 App. Div. 292, 
 
 (N. Y.) 541; Cohn v. Polstein, 41 100 N. Y. S. 790. 
 
 Misc. 431, 84 N. Y. S. 1072; Vaughn "As to the right to a lien on a 
 
 V. Vaughn, r2 Heisk. (Tenn.) 472; cause of action generally, see supra, 
 
 Keith V. Fitzhugh, 15 Lea (Tenn.) 50. §§ 613-617. And as to liens on judg- 
 
 See also Martin v. Kennedy, 83 Ky. ments generally, see mfra, §§ 634- 
 
 335, 344. 637. 
 
 8 Boyle V. Boyle, 116 Fed. 764 J2 Patrick v. Morrow, 33 Colo. 509, 
 
 (cited under the laws of Pennsylva- 81 Pac. 242, 108 Am. St. Rep. 107; 
 
 nia) ; Gibson v. Buckner, 65 Ark. 84, Strohecker v. Irvine, 76 Ga. 639, 2 
 
 44 S. W. 1034; Gladney v. Rush, 68 Am. St. Rep. 62; McLean v. Lerch, 
 
 Ark. 80, 56 S. W. 448; Newbaker v. 105 Tenn. 693, 58 S. W. 640. 
 
 Alricks, 5 Watts (Pa.) 183; Brown's 13 McLean v. Lerch, 105 Tenn. 693, 
 
 Estate, 131 Pa. St. 352, 18 Atl. 58 S. W. 640. 
 
§§ 633, 634] RIGHTS AND PBOPEETY AFFECTED BY LIEK. 1029 
 
 cation for the setting apart and valuation of a homestead is not a 
 suit for money, nor the recovery of real or personal property.** 
 
 § 633. Personal Property. — So, also, an attorney's lien at- 
 taches to personal property in some jurisdictions. In some statutes 
 the word "property" is used generally, and in others it is speciiied 
 that the lien of an attorney may attach to either real or personal 
 property,** to the extent of the client's interest therein.*® Thus, an 
 attorney's lien will attach to the bonds of a railway company where 
 he has been employed to protect his client's interest therein in 
 foreclosure proceedings." The lien so acquired follows the prop- 
 erty, and will attach to money into which the property has been 
 converted.** In the absence of statute, however, an attorney's lien 
 does not attach to personal property; and whether such property 
 is made subject to the lien by statute must be determined from an 
 examination of the local law.*® 
 
 Judgments, Decrees, and Awards. 
 
 § 634. Judgments and Decrees Generally. — The right of 
 an attorney to a charging lien on a judgment recovered by him for 
 his client, as security for his compensation, is now recognized in 
 nearly every jurisdiction,^" and will be protected in courts of law 
 
 WHaygood u. Dannenberg, 102 Ga. 441, 1 Dowl. & L. 542; Griffin v. 
 
 24, 29 S. E. 293. Eyles, 1 H. Bl. 122; Cox v. Prichard, 
 
 16 Lane v. Hallum, 38 Ark. 385 ; 20 L. J. Q. B. 353 ; Slater v. Suther- 
 
 Wooten V. Denmark, 85 Ga. 578, 11 land, 33 L. J. Q. B. 37. 
 
 S. E. 861; Lovett v. Moore, 98 Ga. i7«i*ed S«o*e«.— Central R., & B. Co. 
 
 158, 26 S. E. 498; Meyers v. Bloon, 20 ^_ p^ttug^ ^jg u. s. 116, 5 S. Ct. 387, 
 
 Tex. Civ. App. 554, 50 S. W. 217. 28 U. S. (L. ed.) 915; Tuttle v. Claf- 
 
 la Garr .. Breeze, 10 Ky. L. Rep. 77 j.^^ gg ^^^ g^^ 
 (abstract). 
 
 l7Coet;.East&WestR.Co.of Ala- ^J«6ama.-Warfield v. Campbell, 
 
 bama, 65 Fed. 16. 3« ^^- S", 82 Am. Dec. 724; Ex p. 
 
 18 Noftzger v. Moffett, 63 Kan. 354, Lehman Durr & Co., 59 Ala. 631 ; 
 65 Pac. 670. See supra, § 626. McWilliams v. Jenkins, 72 Ala. 480; 
 
 19 Goslin V. Campbell, 7 Ohio Dee. Higley v. White, 102 Ala. 604, 15 So. 
 (Reprint) 456, 3 Cine. L. Bui. 369. 1*1; Kelly v. Horsely, 147 Ala. 508, 
 
 80 Bmt/iand.— Sullivan v. Pearson, L. 41 So. 902; Carroll v. Draughon, 154 
 R. 4 Q. B. 153, 38 L. J. Q. B. 65; Ala. 430, 45 So. 919; Fuller v. Clem- 
 Barker V. St. Quintin, 12 M. & W. mons, 158 Ala. 340, 48 So. 101. 
 
1030 
 
 EIGHTS AND PEOPEETY AFFECTED BY LIEN. [§ 634 
 
 Arkansas, — Sexton v. Pike, 13 Ark. 
 193. 
 
 Colorado^ — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. Rep. 
 567; Johnson v. McMillan, 13 Colo. 
 423, 22 Pac. 769. 
 
 Connecticut. — Andrews v. Morse, 12 
 Conn. 444, 31 Am. Dec. 752; Cooke v. 
 Thresher, 51 Conn. 105; De Wande- 
 laer v. Sawdey, 78 Conn. 654, 63 Atl. 
 446. 
 
 Florida. — Carter v. Davis, 8 Fla. 
 183. 
 
 Indiana. — Blair v. Lanning, 61 Ind. 
 499; Hanna v. Island Coal Co., 5 Ind. 
 App. 163, 31 N. E. 846, 51 Ara. St. 
 Rep. 246; Miedreich v. Rank, 40 Ind. 
 App. 393, 82 N. E. 117. 
 
 Iowa. — Hubbard v. Ellithorpe, 135 
 la. 259, 112 N. W. 796, 124 Am. St. 
 Rep. 271. 
 
 Kentucky. — Harlan v. Bennett, 127 
 Ky. 572, 106 S. W. 287, 128 Am. St. 
 Rep. 360, 32 Ky. L. Rep. 493. 
 
 Maine. — Potter v. Mayo, 3 Greenl. 
 34, 14 Am. Dec. 211; Gammon v. 
 Chandler, 30 Me. 152 ; Hobson v. Wat- 
 son, 34 Me. 20, 56 Am. Dec. 632 ; Bick- 
 ford V. Ellis, 50 Me. 121. 
 
 Massachusetts. — Woods v. Verry, 4 
 Gray 357; Baker v. CooI<, 11 Mass. 
 236; Bruce v. Anderson, 176 Mass. 
 ISl, 57 N. E. 354. 
 
 Minnesota. — ^Northrup v. Hayward, 
 102 Minn. 307, 12 Ann. Cas. 341, 113 
 N. W. 701. 
 
 Mississippi. — Stewart v. Flowers, 
 44 Miss. 513, 7 Am. Rep. 707. 
 
 Missouri. — Taylor v. St. Louis 
 Transit Co., 198 Mo. 715, 97 S. W. 
 155. 
 
 Nebraska. — Griggs v. White, 5 Neb. 
 467; Taylor v. StuU, 79 Neb. 295, 
 112 N. W. 577. 
 
 New Hampshire. — ^Young v. Dear- 
 born, 27 N. H. 324; Currier v. Boston 
 
 & M. R. R., 37 N. H. 223; Christie 
 V. Sawyer, 44 N. H. 298. 
 
 New York. — N. Y. Judiciary Law, 
 § 475; Williams v. IngersoU, 23 Hun 
 284; Pulver v. Harris, 52 N. Y. 73; 
 Goodrich v. McDonald, 112 N. Y. 157, 
 19 N. E. 649; Matter of Regan, 167 
 N. Y. 343, 60 N. E. 656; Fischer-Han- 
 sen V. Brooklyn Heights R. Co., 173 
 N. Y. 492, 66 N. E. 395; Serwer v. 
 Serwer, 91 App. Div. 538, 86 N. Y. S. 
 838; Agricultural Ins. Co. v. Smith, 
 112 App. Div. 840, 35 Civ. Proc. 338, 
 98 N. Y. S. 347 ; Dimick v. Cooley, 3 
 Civ. Proc. 141; Kipp v. Rapp, 7 Civ. 
 Proc. 316; Keenan v. Durfinger, 12 
 Abb. Pr. 327 note; Ackerman v. Ack- 
 erman, 14 Abb. Pr. 229; Cragin v. 
 Travis, 1 How. Pr. 157; Ward v. 
 Syme, 9 How. Pr. 16; Sherwood v. 
 Buffalo & N. Y. C. R. Co., 12 How. 
 Pr. 136; Haight v. Holcomb, 16 How. 
 Pr. 160, 7 Abb. Pr. 210; Owen v. Ma- 
 son, 18 How. Pr. 156; Adams v. Fox, 
 27 How. Pr. 409; Crotty v. Mac- 
 Kenzie, 52 How. Pr. 54; Albert 
 Palmer Co. v. Van Orden, 64 How. Pr. 
 79; Turno v. Parlce, 2 How. Pr. N. S. 
 35; Adsit v. Hall, 3 How. Pr. N. S. 
 373. 
 
 North Dakota. — Clark v. Sullivan, 
 3 N. D. 280, 55 N. W. 733; Lown v. 
 Casselman, 141 N. W. 73. 
 
 South Dakota. — Leighton v. Serve- 
 son, 8 S. D. 350, 66 N. W. 938. 
 
 Tennessee. — Ex p. Smithson, 108 
 Tenn. 442, 67 S. W. 864. 
 
 Texas. — Chapman v. Sneed, 17 Tex. 
 428 ; Mays v. Sanders, 90 Tex. 132, 37 
 S. W. 595; Dutton v. Mason, 21 Tex. 
 Civ. App. 389, 52 S. W. 651. 
 
 '"'^foft..— ^Comp. Laws of Utah, § 135. 
 See also Gray v. Denhalter, 17 Utah 
 312, 53 Pac. 976. 
 
 West Virginia. — Reniclc v. Luding- 
 ton, 16 W. Va. 378; Fowler v. Lewis, 
 
§ 634] EIGHTS AITD PEOPEBTY AFFECTED BY LIEN. 
 
 1031 
 
 and equity.* As a general rule, liens of this character also cover 
 costs and disbursements.* In most instances the right to a lien 
 upon a judgment is now provided for and regulated by statute. 
 These statutes are not retroactive.' It has been held, however, 
 that the statutory lien is merely declaratory of the common law.* 
 But in some jurisdictions an attorney is not entitled to a charg- 
 ing lien on judgments recovered by him,* excepting, possibly, 
 where there is an agreement providing for such a lien ; * and in 
 others it has been held that, in order to be entitled to a lien, the 
 amount of the attorney's compensation must be fixed by a special 
 contract or professional usage.' So, it has been held that a statute 
 
 36 W. Va. 112, 14 S. E. 447; Bent v. 
 Lipscomb, 45 W. Va. 183, 31 S. E. 
 907, 72 Am. St. Eep. 815; Hazeltine 
 V. Keenan, 54 W. Va. 600, 46 S. E. 
 609, 102 Am. St. Rep. 953; Fisher v. 
 Mylius, 62 W. Va. 19, 57 S. E. 276. 
 
 Wisconsin. — Howard t'. Osceola, 22 
 Wis. 453; Courtney v. McGavock, 23 
 Wis. 619; Rice v. Garnhart, 35 Wis. 
 282. 
 
 1 Andrews v. Morse, 12 Conn. 444, 
 31 Am. Dec. 752. As to tlie eflfect of 
 settlement without the attorney's con- 
 sent, see infra, §§ 640-645. 
 
 ■3 Thayer v. Daniels, 113 Mass. 129; 
 Kinney v. Tabor, 62 Mich. 517, 29 N. 
 W. 86, 512; Barry v. Third Ave. R. 
 Co., 87 App. Div. 543, 84 N. Y. S. 
 830; Peetsch v. Quinn, 6 Misc. 52, 26 
 N. Y. S. 729; In re Lazelle, 16 Misc. 
 515, 40 N. Y. S. 343. 
 
 But see Robinson v. Hays, 186 Fed. 
 295, 108 C. C. A. 373, wherein it was 
 held that an attorney, who advanced 
 money to his client to be used in pay- 
 ment of costs and expenses in litiga- 
 tion involving an estate, under an 
 agreement that he was to be repaid 
 from the estate if recovered, has no 
 lien upon a judgment for costs recov- 
 ered for such advances. 
 
 8 Young V. Renshaw, 102 Mo. App. 
 173, 76 S. W. 701. 
 
 * Brown v. Morgan, 163 Fed. 395. 
 See also Martin v. Hawks, 15 Johns. 
 (N. Y.) 405; Pulver v. Harris, 52 N. 
 Y. 73; Randall v. Van Wagenen, 115 
 N. Y. 527, 22 N. E. 361, 12 Am. St. 
 Rep. 828. And see supra, § 579. 
 
 5 California.— :E,x p. Kyle, 1 Cal. 
 331 ; Mansfield v. Dorland, 2 Cal. 507. 
 
 Illinois. — Humphrey v. Browning, 
 46 ni. 476, 95 Am. Dec. 446; Forsythe 
 V. Beveridge, 52 111. 268, 4 Am. Rep. 
 612; La Framboise o. Grow, 56 111. 
 197; Nichols v. Pool, 89 111. 491; 
 Wyman v. Snyder, 112 111. 99, 1 N. E. 
 469; Story v. Hull, 143 111. 506, 32 N. 
 E. 265; North Chicago St. R. Co. v. 
 Ackley, 171 111. 100, 49 N. E. 222, 44 
 L.R.A. 177; Bromwell v. Turner, 37 
 111. App. 561. 
 
 Maryland. — Levy v. Steinbach, 43 
 Md. 212. 
 
 South Carolina. — Scharlock v. Gl- 
 and, 1 Rich. L. 207. 
 
 6 Barbee v. Aultman, Miller & Co., 
 102 la. 278, 71 N. W. 235. And see 
 supra, § 583, as to liens created by 
 contract generally. 
 
 T Pugh V. Boyd, 38 Miss. 326. 
 
1032 EIGHTS AND PEOPEBTT AFFECTED BY LIEIT. [§ 635 
 
 providing for a lien on money due the client in the hands of an 
 adverse party, does not entitle the attorney to a lien on the judg- 
 ment* 
 
 § 635. As Affected by Nature of Judgment. — Under the 
 
 'New York statute an attorney's lien attaches to any verdict, re- 
 port, decision, or judgrnent in his client's favor.' A similar statute 
 prevails in Missouri,^" and in Utah.^* So, in these and some other 
 jurisdictions, a lien will accrue in favor of a defendant's attorney 
 v?ho recovers on a counterclaim.** An attorney's charging lien has 
 been sustained on judgments for tort,** and in proceedings for 
 foreclosure,** condemnation,** and the enforcement of liens.** So, 
 a lien may accrue in proceedings in connection with the probate 
 of a will,*'' or the recovery of a fine,** or in bastardy proceedings.** 
 It has also been held that an attorney is entitled to a lien upon 
 a restraining order, notwithstanding the difficulty he might en- 
 counter in attempting its enforcement.** So, a lien will accrue 
 in special proceedings,* and on an award of arbitrators.* There 
 must, however, be a recovery ; * thus, it has been held that where 
 
 8 Patrick v. Leach, 12 Fed. 661 16 Harlan v. Bennett, 106 S. W. 287, 
 (decided under a Nebraska statute) ; 32 Ky. L. Rep. 473. 
 
 Gibson v. Chicago, M. & St. P. R. Co., " Johnson v. Breckenridge, 4 Ky. L. 
 
 122 la. 565, 98 N. W. 474. Compare Rep. 994. 
 
 the cases cited from those jurisdic- 18 Woolf v. Jacobs, 45 Super Ct. 
 
 tions under the first note in this sec- (N. Y.) 583. 
 
 tion. WBickford v. Ellis, 50 Me. 121; 
 
 9 N. Y. Judiciary Law, § 475. Taylor v. Stull, 79 Neb. 295, 112 N. W. 
 16 Taylor v. St. Louis Transit Co., 577. 
 
 ]98 Mo. 715, 97 S. W. 155. 26 Mt. Sterling Coal Road Co. v. 
 
 11 Comp. Laws of Utah, § 135. Cox, 2 Ky. L. Rep. 60. 
 
 12 See the statutes cited in the pre- l Webb v. Parker, 130 App. Div. 92, 
 ceding note; and see also supra, § 598. 114 N. Y. S. 489. 
 
 13 Bell V. Wood, 7 Ky. L. Rep. 516; « Webb v. Parker, 130 App. Div. 92, 
 Lee V. VanVoorhis, 78 Hun 575, 29 N. 114 N. Y. S. 489; Hutchinson v. How- 
 Y. S. 57], affirmed 145 N. Y. 603, 40 ard, 15 Vt. 544. 
 
 N. E. 164. And see supra, § 616. 3 Wilson v. House, 10 Bush (Ky.) 
 
 14 Griggs V. White, 5 Neb. 467. 406. 
 
 16 Wendell v. Binninger, 132 App. An attorney who does not recover 
 
 Div. 785, 117 N. Y. S. 616; Ferris v. the judgment can claim no lien there- 
 
 Lawrene, 138 App. Div. 541, 123 N. Y. on because of the fact that he sub- 
 
 S. 209. sequently represents the judgment 
 
636] 
 
 RIGHTS AND PBOPERTY AFFECTED BY LIBIT. 
 
 1033 
 
 the judgment debt was paid out to intervening creditors,* or where 
 there was a compromise before judgment, the statute giving a lien 
 on a judgment had no application.* So, where a judgment has 
 been reversed on appeal, the attorney's lien falls with it.^ It has 
 also been held that a proceeding M'hereby a fund is removed from 
 one state to another, is not such a recovery as will justify the 
 declaration of a lien in favor of the attorney for the moving party.'' 
 
 § 636. Extent of Lien. — An attorney's charging lien on a 
 judgment extends to all incidents thereof,' and will attach, in- 
 directly, to those things on which the judgment itself is a lien.® 
 Thus, it will attach to securities which have been given for the 
 payment of the judgment,^" and to the proceeds of the judgment,*^ 
 and to land which is taken in satisfaction thereof.*' In some states 
 it is held that, although the attorney's charging lien attaches to 
 
 creditor, or his assignee. Alden, v. 
 White, 32 Ind. App. 393, 68 N. E. 
 913; Rook v. Diclcinson, 38 Misc. 
 690, 11 N. Y. Ann. Cas. 454, 78 N. Y. 
 S. 287. 
 
 4 Ward V. Sherbondy, 96 la. 477, 65 
 N. W. 413. 
 
 SKoons V. Beach, 147 Ind. 137, 45 
 N. E. 601, 46 N. E. 587. 
 
 6 Sliaggs V. Hines, 5 Ky. L. Rep. 
 106; Dunlap v. Burnham, 38 Me. 112. 
 
 But see McDonald v. Napier, 14 Ga. 
 89, wherein it appears that an at- 
 torney applied money, received by him 
 from the defendant, in satisfaction of 
 his fees, under an understanding with 
 the defendant; and it was held that 
 sucli application of the money was 
 equivalent to a payment over to his 
 client, and would protect the attorney 
 from a suit by the defendant to re- 
 cover the money back, on the reversal 
 of the judgment. 
 
 TManson v. Stacker, (Tenn.) 36 S. 
 W. 188. 
 
 SKipp V. Rapp, 7 Civ. Proc. (N. 
 Y.) 316. 
 
 9 Atlantic Sav. Bank v. Hiler, 3 
 Hun (N: Y.) 209. 
 
 See supra, §§ 618-626, as to whether 
 the lien attaches to money, and other 
 property. 
 
 16 Hobson V. Watson, 34 Me. 20, 56 
 Am. Dec. 632; Bickford v. Ellis, 50 
 Me. 121; Kipp v. Rapp, 7 Civ. Proc. 
 (N. Y.) 316; Shackleton v. Hart, 20 
 How. Pr. (N. Y.) 39, 12 Abb. Pr. 325 
 note; Clark v. Sullivan, 3 N. D. 280, 
 55 N. W. 733. 
 
 11 Higley v. White, 102 Ala. 604, 15 
 So. 141; Fuller v. Clemmons, 158 Ala. 
 340, 48 So. 101; Smith v. Goode, 29 
 Ga. 185; In re Bailey, 31 Hun (N. 
 Y.) 608; In re Gates, 51 App. Div. 
 350, 31 Civ. Proc. 88, 64 N. Y. S. 
 1050; Shaunessy v. Traphagen, 13 N. 
 Y. St. Rep. 754. 
 
 12 Isom V. Bell, 7 Ky. L. Rep. 589 ; 
 Gray v. Denhalter, 17 Utah 312, 53 
 Pac. 976; Loofbourow v. Hicks, 24 
 Utah 49, 66 Pac. 602, 55 L.R.A. 874. 
 
1034 
 
 EIGHTS AND PEOPBETT AFFECTED BY LIEN. [§ 637 
 
 the judgment, it does not become effective until the money has 
 been collected thereon.^' 
 
 § 637. Judgments and Decrees for Alimony. — Alimony is 
 intended for the support of the party to whom it has been awarded, 
 and the court will not countenance its appropriation to any other 
 purpose; therefore, an attorney can have no lien as against a 
 judgment or decree for alimony, or as against a fund deposited to 
 secure the payment thereof.'* JSTor is it material, in such ease, 
 that the parties become reconciled for the purpose of depriving 
 the attorney of his compensation.'* Indeed," an agreement by a 
 wife to compensate her attorney for services in prosecuting an 
 action for separation, by giving him a percentage of the alimony 
 recovered, is void as against public policy.'* But where property 
 rights are adjudicated in a divorce proceeding, and a decree is 
 entered making a final division thereof, and awarding to the party 
 
 IS Fisher v. Mylius, 62 W. Va. 19, 
 57 S. E. 276. See also Braden v. 
 Ward, 42 N. J. L. 518; Casey v. 
 March, 30 Tex. 180. 
 
 1* Michigan. — Canney v. Canney, 
 131 Mich. 363, 91 N. W. 620, 9 De- 
 troit Leg. N. 356. 
 
 New Jersey. — Gregory v. Gregory, 
 32 N. J. Eq. 424. 
 
 New York. — In re Brackett, 114 
 App. Div. 257, 99 N. Y. S. 802, af- 
 firmed 189 N. Y. 502, 81 N. E. 1]60; 
 Mooney v. Mooney, 29 Misc. 707, 7 N. 
 Y. Ann. Gas. 257, 62 N. Y. S. 769; 
 Weill V. Weill, 18 Civ. Proe. 241, 10 
 N. Y. S. 627; Branth v. Branth, 19 
 Civ. Proc. 28, 10 N. Y. S. 638; Keane 
 r. Keane, 86 Hun 159, 33 N. Y. S. 250. 
 
 Tennessee. — Garden v. Garden, 37 
 S. W. 1022. And see Payne v. Payne, 
 106 Tenn. 467, 61 S. W. 767. 
 
 Washington. — Hillman v. Hillman, 
 42 Wash. 595, 85 Pac. 61, 114 Am. 
 St. Rep. 135. 
 
 Where a wife has compromised a 
 suit against her husband for a, di- 
 
 vorce, her solicitor cannot afterwards 
 prosecute the suit in order to obtain 
 his costs. Chastain v. Lumpkin, 134 
 Ga. 219, 67 S. E. 818; Kirby v. Kirby, 
 1 Paige (N. Y.) 565. 
 
 Neither can he revive for his own 
 benefit a pending petition for alimony 
 which fell with the dismissal of the 
 case on reconciliation of the parties. 
 Petersen v. Petersen, 76 Neb. 282, 107 
 N. W. 391, 124 Am. St. Rep. 812. 
 
 Compare Putnam v. Tennyson, 50 
 Ind. 456, wherein a lien as against 
 alimony was upheld, and Hubbard v. 
 EUithorpe, 135 la. 259, 112 N. W. 
 796, 124 Am. St. Rep. 271, where the 
 rule stated in the text was said to 
 be applicable to temporary alimony 
 only. 
 
 15 In re Brackett, 114 App. Div. 257, 
 99 N. Y. S. 802, affirmed 189 N. Y. 
 502, 81 N. E. 1160. 
 
 16 In re Brackett, 114 App. Div. 
 257, 99 N. Y. S. 802, affirmed 189 N. 
 Y. 502, 81 N. E. 1160. And see also 
 supra, § 437. 
 
§ 638] 
 
 EIGHTS AND PEOPEETY AFFECTED BY LIEIT. 
 
 1035 
 
 obtaining the divorce specific property, or a money judgment repre- 
 senting such party's interest, in lieu thereof, it has been held that 
 the attorney is entitled to a lien thereon for his services." 
 
 To What Retodnvng Lien Attaches. 
 
 § 638. Property in Possession. — An attorney's retaining 
 lien, which has been considered generally heretofore,^' extends to 
 all books, papers, and property which come into the attorney's 
 possession,*' in the course of his professional employment,^" and 
 irrespective of the purpose for which they were placed in his 
 
 "Hubbard v. Ellithorpe, 135 la. 
 259, 112 N. W. 796, 124 Am. St. Eep. 
 271. 
 
 "See supra, §§ 573-577. 
 
 19 United States. — Leszynsky v. 
 Merritt, 9 Fed. 688; Finance Co. of 
 Pennsylvania v. Charleston,' C. & C. 
 E. Co., 46 Fed. 426; In re Baxter, 
 154 Fed. 22, 83 C. C. A. 106; In re 
 Brown, 1 N. Y. Leg. Obs. 69, 4 Fed. 
 Cas. No. 1,984. 
 
 Arkansas. — Gist v. Hanly, 33 Ark. 
 233. 
 
 Illinois. — Sanders v. Seelye, 128 111. 
 631, 21 N. E. 601. 
 
 Louisiana — Butchers' Union Slaugh- 
 ter-House & Live-Stock Landing Co. 
 V. Crescent City Live-Stock Landing 
 & Slaughter-House Co., 41 La. Ann. 
 355, 6 So. 508. 
 
 MichAgam. — Eobinson v. Hawes, 56 
 Mich. 135, 22 N. W. 222. 
 
 Minnesota. — First State Bank v. 
 Sibley County Bank, 96 Minn. 456, 
 105 N. W. 485, 489. 
 
 Mississippi. — Stewart v. Flowers, 
 44 Miss. 513, 7 Am. Eep. 707. 
 
 Nebraska. — Cones v. Brooks, 60 
 Neb. 698, 84 N. W. 85; Phillips v. 
 Hogue, 63 Neb. 192, 88 N. W. 180. 
 
 New Hampshire. — Dennett v. Cutts, 
 11 N. H. 163. 
 
 New York. — In re Eusaell, 1 How. 
 Pr. 149; St. John v. Diefendorf, 12 
 Wend. 261; In re McGuire, 106 App. 
 Div. 131, 94 N. Y. S. 97; In re Edward 
 Ney Co., 114 App. Div. 467, 99 N. Y. 
 S. 982. 
 
 Pennsylvama. — Aycinena v. Peries, 
 6 Watts & S. 243; Balsbaugh v. Fra- 
 zer, 19 Pa. St. 95; Dubois's Appeal, 
 38 Pa. St. 231, 80 Am. Dec. 478; Mc- 
 Kelvy's Appeal, 108 Pa. St. 615; 
 Quakertown & E. E. Co. v. Guaran- 
 tors' Liability Indemnity Co., 206 Pa. 
 St. 350, 55 Atl. 1033. 
 
 South Dakota. — Winans v. Grable, 
 18 S. D. 182, 99 N. W. 1110. 
 
 Tennessee. — McDonald v. Charles- 
 ton, C. & C. E. Co., 93 Tenn. 281, 24 
 S. W. 252. 
 
 Texas. — Casey v. March, 30 Tex. 
 185; Thomson v. Findlater Hard- 
 ware Co., 156 S. W. 301. 
 
 Vermont. — Hutchinson v. Howard, 
 15 Vt. 544; Davis v. Farwell, 80 Vt. 
 166, 67 Atl. 129. 
 
 20 De Lamater v. McCaskie, 4 Dem. 
 (N. Y.) 549; Lawrence v. Townsend, 
 88 N. Y. 24; Winans v. Grable, 18 S. 
 D. 182, 99 N. W. 1110. 
 
1036 
 
 EIGHTS AND PEOPEKTY AFFECTED BY LIEN. [§ 638 
 
 hands ; ^ providing, of course, that such purpose is consistent with 
 the right to charge a lien thereon.* So, where several attorneys 
 are engaged in conducting litigation for a client, property com- 
 ing into the possession of any one of them, for the purposes of 
 such litigation, inures to the benefit of all.* Thus a retaining lien 
 will attach to honds,* notes,® and other securities.* So, the lien 
 will attach to a town order,' municipal warrant,' check,* bank- 
 book,^" and accounts.^' The lien will also attach as to deeds,^' 
 leases,^' insurance policies," and shares of stock.*® So, it has 
 
 1 Sanders v. Seelye, 128 111. 631, 21 
 N. E. 601; Scott V. Morris, 131 111. 
 App. 605. 
 
 2 See the following section. 
 
 3 Sanders v. Seelye, 128 111. 631, 21 
 N. E. 601, affirming 27 111. App. 288. 
 
 * United States. — McPherson v. Cox, 
 96 U. S. 404, 24 U. S. (L. ed.) 746; 
 Coe V. East & West E. Co. of Ala- 
 bama, 65 Fed. 16. 
 
 Illinois. — Sanders v. Seelye, 128 
 111. 631, 21 N. E. 601, affirming 27 111. 
 App. 288. 
 
 Kentucky/. — Mcintosh v. Bach, 110 
 Ky. 701, 62 S. W. 515, 23 Ky. L. Kep. 
 74. 
 
 Maine. — Hobson v. Watson, 34 Me. 
 20, 56 Am. Dec. 632; Bickford v. El- 
 lis, 50 Me. 121. 
 
 New York. — Fairbanks v. Sargent, 
 39 Hun 588, affirmed 104 N. Y. 108, 9 
 N. E. 870, 58 Am. Rep. 490; Arken- 
 burgh V. Arkenburgh, 27 Misc. 760, 
 59 N. Y. S. 612, affirmed 49 App. Div. 
 636, 64 N. Y. S. 742, 176 N. Y. 551, 
 68 N. E. 1114 ; Shackleton v. Hart, 20 
 How. Pr. 39, 12 Abb. Pr. 325 note. 
 
 5 United States. — In re Brown, 1 N. 
 Y. Leg. Obs. 69, 4 Fed. Cas. No. 1,984. 
 
 Alaiavia. — Tillman v. Reynolds, 48 
 Ala. 365. 
 
 Mississippi. — Stewart t". Flowers, 
 44 Miss. 513, 7 Am. Rep. 707. 
 
 New Ea/mpsMre. — Dennett v. Cutts, 
 11 N. H. 163. 
 
 New York. — Heyward v. Maynard, 
 119 App. Div. 66, 103 N. Y. S. 1028. 
 
 Vermont. — Hutchinson v. Howard, 
 15 Vt. 544. 
 
 Wisconsin. — ^Howard v. Osceola, 22 
 Wis. 453; Dickinson v. Ritchie, 50 
 Wis. 365, 7 N. W. 305. 
 
 6 Needles v. Smith, 87 Fed. 316, 58 
 U. S. App. 276, 32 C. C. A. 226; Gist 
 V. Hanly, 33 Ark. 233; In re Sweeney, 
 86 App. Div. 547, 83 N. Y. S. 680. 
 
 1 Howard v. Osceola, 22 Wis. 453. 
 
 8 Gordon v. Hennings, 89 Neb. 252, 
 131 N. W. 228. 
 
 9 Weber v. Werner, 138 App. Div. 
 127, 122 N. Y. S. 943. 
 
 10 Matter of Stenton, 53 Misc. 515, 
 105 N. Y. S. 295. 
 
 "Hargett v. McCadden, 107 Ga. 
 773, 33 S. E. 666. 
 
 12 Stewart v. Flowers, 44 Miss. 518, 
 7 Am. Rep. 707. 
 
 13 Jackson v. Erkins, 131 App. Div. 
 801, 116 N. Y. S. 385. 
 
 1* Curtis V. Richards, 4 Idaho 434, 
 40 Pao. 57, 95 Am. St. Rep. 134; 
 Matter of H., 87 N. Y. 521, 63 How. 
 Pr. 152; In re Sweeney, 86 App. Div. 
 547, 83 N. Y. S. 680. 
 
 16 Cory V. Harte, 13 Daly (N. Y.) 
 147; Newbert v. Cunningham, 50 Me. 
 231, 79 Am. Dec. 612. 
 
§ 639] 
 
 EIGHTS AND PEOPEETY AFFECTED BY LIEN. 
 
 1037 
 
 been held that the lien will attach to an execution in the hands 
 of the attorney, and to the printed record on appeal/* and to 
 money " and other personal property.''' 
 
 § 639. Possession Must Be Consistent with Lien. — 
 
 An attorney's possession of his client's property, in order that a 
 retaining lien may accrue, must not be inconsistent with, or ad- 
 verse to, his right to assert such lien.^® If the property has been 
 received for a purpose which is not consistent with the right to 
 charge a lien thereon, such purpose must be carried out.'" Thus, 
 
 16 In re Hollins, 197 N. Y. 361, 90 
 N. E. 997. Compare In re Bergstrom 
 & Co., 131 App. Div. 791, 116 N. Y. S. 
 245. 
 
 17 United States. — In re Paschal, 10 
 Wall. 483, 19 U. S. (L. ed.) 992. 
 
 District of Columbia. — Meloy v. Me- 
 loy, 24 App. Cas. 239. 
 
 Louisiana — Butchers' Union Slaugh- 
 ter-House & Live-Stock Landing Co. 
 V. Crescent City Live-Stock Landing 
 & Slaughter-Houae Co., 41 La. Ann. 
 355, 6 So. 508. 
 
 Michigan. — Bowling v. Eggemann, 
 47 Mich. 171, 10 N. W. 187. 
 
 Minnesota. — Le Sueur First State 
 Bank v. Sibley County Bank, 96 Minn. 
 456, 105 N. W. 485, 489. 
 
 Mississippi. — Stewart v. Flowers, 
 44 Miss. 518, 7 Am. Rep. 707; Hal- 
 sell V. Turner, 84 Miss. 432, 36 So. 
 531. 
 
 Nebraska.— Ya.li Etten v. State, 24 
 Neb. 734, 40 N. W. 289, 1 L.R.A. 669; 
 Phillips V. Hogue, 63 Neb. 192, 88 N. 
 W. 180; Burleigh v. Palmer, 74 Neb. 
 122, 12 Ann. Cas. 777, 103 N. W. 
 1068. 
 
 New York. — Bowling Green Sav. 
 Bank v. Todd, 52 N. Y. 489; In re 
 Knapp, 85 N. Y. 284; Matter of 
 Smith, 111 App. Div. 23, 35 Civ. Proe. 
 
 314, 97 N. Y. S. 171; In re Boss, 123 
 App. Div. 74, 107 N. Y. S. 899; Ar- 
 kenburgh v. Arkenburgh, 27 Misc. 
 760, 59 N. Y. S. 612, affirmed 49 App. 
 Div. 636, 64 N. Y. S. 742, 178 N. Y. 
 551, 68 N. E. 1114; Rose v. Whiteman, 
 52 Misc. 210, 101 N. Y. S. 1024. 
 
 Ohio. — State v. Ampt, 6 Ohio Dec. 
 (Reprint) 699, 7 Am. L. Rec. 469; 
 Fargo Gas Light & Coke Co. v. Greer, 
 10 Ohio Cir. Dec. 164, 18 Ohio Cir. 
 Ct. 589. 
 
 Pennsylvania. — Quakertown & E. R. 
 Co. V. Guarantors Liability Indemnity 
 Co., 206 Pa. St. 350, 55 Atl. 1033. 
 
 Tennessee. — Read v. Bostick, 6 
 Humph. 321. 
 
 18 Gist V. Hanly, 33 Ark. 233 ; Mat- 
 ter of Smith, 111 App. Div. 23, 35 
 Civ. Proc. 314, 97 N. Y. S. 171. 
 
 19 Henry v. Fowler, 3 Daly (N. Y.) 
 199; Matter of Rowland, 166 N. Y. 
 641, 60 N. E. 1120, affirming 55 App. 
 Div. 66, 8 N. Y. Ann. Cas. 397, 66 N. 
 Y. S. 1121; Matter of Edward Ney 
 Co., 114 App. Div. 497, 99 N. Y. S. 
 982 ; Watts V. Newberry, 107 Va. 233, 
 57 S. E. 657. 
 
 80 Neio York.— In re Hollins, 197 N; 
 Y. 361, 90 N. E. 997. 
 
 Oregon.— State v. Lucas, 24 Ore. 
 168, 33 Pac. 538. 
 
1038 EIGHTS AND PEOPEETY AFFECTED BY LIEN. [§ 639 
 
 where a testator delivered a will to his attorney with instructions 
 to deposit it in a certain place, it was held that the possession of 
 the attorney was that of a mere agent or messenger, and inconsist- 
 ent with his right to claim a retaining lien.^ Nor will lien rights 
 exist as against property which comes into the possession of an, 
 attorney while acting in another capacity; thus, an attorney can- 
 not hold property which came into his possession as an admin- 
 istrator, to secure the payment of his compensation for serv- 
 ices rendered to the decedent during his lifetime.* And, a fortiori, 
 an attorney cannot claim a lien on property the possession of 
 which was fraudulently obtained by him.' 'Nor can an attorney 
 retain stock which he caused to be placed in his name, knowing 
 that it belonged to a third person and not to his client.* And where 
 an executor's attorney secures possession of money of the estate, 
 which was irregularly drawn from a bank, and seeks to retain it 
 by virtue of an alleged lien for his services, the court may, in its 
 discretion, direct him to redeposit it to the credit of the estate.* 
 Nor can an attorney assert a lien as against property which he 
 agreed to return.® 
 
 Rhode Island. — Anderson v. Bos- 8 Heyward v. Maynard, 119 App. 
 
 ■worth, 15 E. I. 443, 8 Atl. 339, 2 Am. Div. 66, 103 N. Y. S. 1028. 
 
 St. Eep. 910. 4 Lindsley v. Caldwell, 234 Mo. 498, 
 
 VerOTom*.— Goodrich v. Mott, 9 Vt. 137 S. W. 983, 37 L.R.A.(N.S.) 
 
 395. 161. 
 
 Virginia. — Watts v. Newberry, 107 ^ In re Rowland, 55 App. Div. 66, 8 
 
 Va. 233, 57 S. E. 657. N. Y. Ann. Cas. 397, 66 N. Y. S. 1121, 
 
 1 Bracher v. Olds, 60 N. J. Eq. 449, affirmed 166 N. Y. 641, 60 N. E. 1120. 
 46 Atl. 770. 6 Quakertown & E. R. Co. v. Guar- 
 
 2 Newell V. West, 149 Mass. 520, 21 antors' Liability Indemnity Co., 200 
 N. E. 954; De Lamater v. McCaskie, Pa. St. 350, 55 Atl. 1033. 
 
 4 Dem. (N. Y.) 549. 
 
CHAPTEE XXV. 
 
 SETTLEMENT, DISMISSAL, SUBSTITUTION, ASSIGNMENT, AND SET- 
 OFF, AS AFFECTING LIEN RIGHTS. 
 
 Settlement, 
 
 § 640. Settlement before Judgment Generally. 
 
 641. Settlement where Lien Eights Exist. 
 
 642. Fraudulent Settlements. 
 
 643. Settlement Pending Appeal. 
 
 644. Effect of Contract for Part of Subjeet-Matter of Litigation. 
 
 645. Settlement after Judgment. 
 
 Dismissal, Substitution, and Assignment, 
 
 646. Dismissal. 
 
 647. Substitution. 
 
 648. Assignment of Judgment. 
 
 649. Assignment of Cause of Action. 
 
 Set-ojf. 
 
 650. Generally. 
 
 651. Set-off of One Judgment against Another. 
 
 652. Assignment of Judgment to Counsel as Affecting Eight of Set-off. 
 
 Settlement, 
 
 § 640. Settlement before Judgment Generally. — As a gen- 
 eral rule, a client may settle his litigation with the adverse 
 party prior to judgment without his attorney's consent, even though 
 such settlement prevents the acquisition of an attorney's lien 
 which would attach if the litigation had proceeded to judgment.^ 
 
 1 United States. — Swanston v. Lincoln, 1 Spr. 230, 20 Fed. Cas. No. 
 
 Morning Star Min. Co., 4 McCrary 11,471; Emma Silver Min. Co. v. 
 
 24], 13 Fed. 215; Peterson v. Wat- Emma Silver Min. Co., 12 Fed. 815; 
 
 son, Blatchf. & H. 487, 19 Fed. Cas. Swanson v. Chicago, St. P. & K. C. E. 
 
 No. 11,037; Brooks i'. Snell, 1 Spr. Co., 35 Fed. 638; In re Baxter & 
 
 48, 4 Fed. Cas. No. 1,961; Purcell v. Co., 154 Fed. 22, 83 C. C. A. 106. 
 
 1039 
 
1040 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 640 
 
 The policy of the law favors the adjustment of claims and the 
 termination of litigation, and the courts are not disposed to limit 
 
 Alahama. — Connor v. Boyd, 73 Ala. 
 385; Ex p. Randall, 149 Ala. 640, 42 
 So. 870. 
 
 Arkansas. — DeGraffenreid v. St. 
 Louis S. W. E. Co., 66 Ark. 260, 50 
 S. W. 272. 
 
 District of Columbia. — Lament v. 
 Washington & Georgetown R. Co., 
 2 Mackey 502, 47 Am. Rep. 268. 
 
 Georgia. — Hawkins v. Loyless, 39 
 Ga. 5; Green v. Southern Exp. Co., 
 39 Ga. 20; Jones v. Morgan, 39 Ga. 
 310, 99 Am. Dec. 458; Harris v. 
 Tison, 63 Ga. 629, 36 Am. Rep. 126. 
 
 Illinois. — Henchey v. Chicago, 41 
 111. 136 ; Cameron, v. Boeger, 200 111. 
 84, 65 N. E. 690, 93 Am. St. Rep. 165. 
 
 Indiana. — Hanna v. Island Coal 
 Co., 5 Ind. App. 163, 31 N. E. 846, 
 51 Am. St. Rep. 246. 
 
 loioa. — Casar v. Sargeant, 7 la. 
 317; Ellwood v. Wilson, 21 la. 523. 
 
 Kentucky. — Wood v. Anders, 5 
 Bush 601 ; Rowe v. Fogle, 88 Ky. 105, 
 10 S. W. 426, 2 L.R.A. 708, 8 Ky. L. 
 Rep. 697 ; Hubble v. Dunlap, 101 Ky. 
 419, 41 S. W. 432; Stewart v. L. & 
 N. R. R. Co., 4 Ky. L. Rep. 718. 
 
 Louisiana. — Smith v. Vicksburg, S. 
 & P. R. Co., 112 La. 985, 36 So. 826. 
 
 Maine. — Potter v. Mayo, 3 Greenl. 
 34, 14 Am. Dec. 211; Hobson v. Wat- 
 son, 34 Me. 20, 56 Am. Dec. 632; 
 Averill v. Longfellow, 66 Me. 237. 
 
 Massachusetts. — Getchell v. Clark, 
 5 Mass. 309; Simmons v. Almy, 103 
 Mass. 33. 
 
 Michigan. — Parker v. Blighton, 32 
 Mich. 266; Wright v. Hake, 38 Mich. 
 525; Voight Brewery Co. v. Donovan, 
 103 Mich. 190, 61 N. W.. 343. 
 
 Minnesota. — Nielsen v. Albert Lea, 
 91 Minn. 388, 392, 98 N. W. 195, 
 
 197; Boogren v. St. Paul City R. 
 Co., 97 Minn. 51, 106 N. W. 104, 114 
 Am. St. Rep. 691, 3 L.R.A.(N.S.) 379. 
 
 Mississippi. — ^Mosely v. Jamison, 
 71 Miss. 456, 14 So. 529. 
 
 MissoMri.— Alexander v. Grand 
 Ave. R. Co., 54 Mo. App. 66. 
 
 Nebraska. — Aspinwall v. Sabin, 22 
 Neb. 73, 34. N. W. 72; Williams v. 
 Miles, 63 Neb. 851, 89 N. W. 455. 
 
 New Hampshire. — Young v. Dear- 
 born, 27 N. H. 327. 
 
 Neio Jersey. — Den v. Heister, 17 
 N..J. L. 438; Weller v. Jersey City, 
 H. & P. St. R. Co., 66 N. J. Eq. 11, 
 57 Atl. 730, affirmed 68 N. J. Eq. 
 659, 6 Ann. Cas. 442, 61 Atl. 459. 
 
 New York. — Roberts v. Doty, 31 
 Hun 128; Quinlan v. Birge, 43 Hun 
 483, 7 N. Y. St. Rep. 147; Pitelier 
 V. Robertson, 66 Hun 632 mem., 21 
 N. Y. S. 66; Stahl v. Wadsworth, 13 
 Civ. Proc. 32, 10 N. Y. St. Rep. 228; 
 Roediger v. Simmons, 2 Abb. N. Cas. 
 279; Wade V. Orton, 12 Abb. Pr. N. 
 S. 444; Pearl v. Robitchek, 2 Daly 
 138; Anonymous, 2 Daly 533; Bene- 
 dict V. Harlow, 5 How. Pr. 347; Sul- 
 livan V. O'Keefe, 53 How. Pr. 426; 
 Talcott V. Bronson, 4 Paige 501; 
 Sweet V. Bartlett, 4 Sandf. 661; 
 Coughlin V. New York Cent. & H. R. 
 R. Co., 71 N. Y. 443, 27 Am. Rep. 
 75, reversing 8 Hun 136; Goldstein 
 V. Nassau Electric R. Co., 157 App. 
 Div. 226, 141 N. Y. S. 805; Pub- 
 lishers' Printing Co. v. Gillin Print- 
 ing Co., 38 N.. Y. S. 784. 
 
 North Dakota. — Olson v. Sargent 
 County, 15 N. D. 146, 107 N. W. 43. 
 
 Ohio. — Connell v. Brumback, 10 
 Ohio Cir. Dec. 149, 18 Ohio Cir. Ct. 
 502. 
 
640] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1041 
 
 the right of parties in this respect. It is true, of course, that this 
 practice may occasionally work a hardship upon attorneys, but, 
 nevertheless, it is a salutary rule.^ Indeed, in most jurisdictions 
 a contract preventing or restricting the client's right to dispose of 
 his litigation is void or voidable on grounds of public policy,' and 
 this is especially true of contracts which affect the marital rela- 
 tions.* Such settlement, however, does not prevent the recovery by 
 the attorney of his taxable costs ; * and although a litigant has the 
 absolute right to make a bona fide settlement of his cause of action, 
 either before or after verdict, without the knowledge or consent of 
 his attorney, it is held that, after a verdict has been obtained fix- 
 ing the amount of the cause of action, a collusive settlement made 
 
 Oklahoma. — Wells Fargo & Co. v. 
 Moore, 31 Olda. 135, 120 Pac. 612, 
 
 Oregon. — Jackson v. Stearns, 48 
 Ore. 25, 84 Pac. 798, 5 L.R.A.(N.S.) 
 390; Wagner v. Goldschmidt, 51 Ore. 
 63, 93 Pac. 689. 
 
 Rhode Island. — Tyler v. Superior 
 Ct., 30 R. I. 107, 73 Atl. 467, 23 
 L.R.A.(N.S.) 1045. 
 
 South Carolina. — Miller v. Newell, 
 20 S. C. 123, 47 Am. Rep. 833. 
 
 South Dakota. — Howard v. Ward, 
 139 N. W. 771. 
 
 Tennessee. — Johnson v. Story, 1 
 Lea 114; Stephens v. Nashville, C. 
 & St. L. R., 10 Lea 448; Sharpe v. 
 Allen, 11 Lea 518; Covington v. Bass, 
 88 Tenn. 496, 12 S. W. 1033. 
 
 Texas. — Whittaker v. Clarke, 33 
 Tex. 647. 
 
 Vermont. — Foot v. Tewksbury, 2 
 Vt. 97; Hutchinson v. Howard, 15 
 Vt. 544; Hutchinson v. Pettes, 18 
 Vt. 614; Hooper v. Welch, 43 Vt. 
 169, 5 Am. Rep. 267. 
 
 Washington. — Plummer v. Great 
 Northern R. Co., 60 Wash. 214, 110 
 Pac. 989, 31 L.R.A.(N.S.) 1215. 
 
 Wisconsin. — Kusterer v. Beaver 
 Attys. at L. Vol. 11.-66. 
 
 Dam, 56 Wis. 471, 14 N. W. 617, 43 
 Am. Rep. 725. 
 
 8Boogren v. St. Paul City R. Co., 
 97 Minn. 51, 106 N. W. 104, 114 Am. 
 St. Rep. 691, 3 L.R.A.(N.S.) 370. 
 
 3 See supra, § 435. 
 
 4 Hillman v. Hillman, 42 Wash. 
 595, 85 Pac. 61, 114 Am. St. Rep. 
 135. And see also supra, § 437. 
 
 5 And see also supra, §§ 484-488, 
 as to taxable costs, statutory fees, 
 and expenses generally. 
 
 United States. — Angell v. Bennett, 
 1 Spr. 85, 1 Fed. Cas. No. 387; Col- 
 lins V. Nickerson, 1 Spr. 126, 6 Fed! 
 Cas. No. 3,016; Gaines r. Travis, 
 Abb. Adm. 297, 9 Fed. Cas. No. 5,- 
 179; The Victory, 1 Blatchf. 443, 28 
 Fed. Cas. No. 16,937. 
 
 Maine. — Cooly v. Patterson, 52 
 Me. 472. 
 
 New York. — Bradt v. Koon, 4 Cow. 
 416; Harris v. Cuff, 48 Hun 617 mem., 
 15 Civ. Proc. 104, 1 N. Y. S. 349; 
 Minto V. Baur, 17 Civ. Proc. 314, 6 
 N. Y. S. 444. 
 
 South Carolina. — Scharlock v. 
 Oland, 1 Rich. L. 207. 
 
 Wisconsin. — Garvin v. Crowley, 116 
 Wis. 496, 93 N. W. 470. 
 
1042 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 641 
 
 to defraud the attorney of his compensation, does not limit the 
 extent of such attorney's lien to the amount actually paid upon 
 such collusive settlement.* 
 
 § 641. Settlement Where Lien Rights Exist. — As shown 
 heretofore, lien rights exist in favor of an attorney prior to judg- 
 ment in several jurisdictions; thus, for instance, he may have a 
 lien on the cause of action,' or on money in the hands of the 
 adverse party or some other person,* or on other property involved 
 in the litigation.' But it is well settled that the existence of such 
 lien rights does not prevent litigants from amicably adjusting 
 their differences without the consent of counsel; in such cases, 
 however, the attorney's lien is not lost,^* but, on the contrary, it 
 
 6 Desaman v. Butler, 118 Minn. 
 198, 136 N. W. 747. 
 
 7 See supra, §§ 613-617. 
 
 8 See supra, §§ 618-626. 
 
 9 See supra, §§ 627-633. 
 
 10 United States. — In re Baxter & 
 Co., 154 Fed. 22, 83 C. C. A. 106. 
 
 California. — Stockton Sav. & Loan 
 Soe. V. Donnelly, 60 Cal. 481. 
 
 Georgia. — Brown v. Georgia, 0. & 
 N. E. Co., 101 Ga. 80, 28 S. E. 634; 
 Johnson v. McCurry, 102 Ga. 471, 31 
 S. E. 88; Georgia R., etc., Co. v. 
 Crosby, 78 S. E. 612. 
 
 Illinois. — Standidge v. Chicago R. 
 Co., 254 111. 524, Ann. Cas. 1913C 
 65, 98 N. E. 963, 40 L.R.A.(N.S.) 
 529; Sutton v. Chicago R. Co., 258 
 III. 551, 101 N. E. 940. 
 
 Iowa. — Barnabee v. Holmes, 115 la. 
 581, 88 N. W. 1098. 
 
 Kansa,s. — Anderson v. Metropoli- 
 tan St. E. Co., 10 Kan. App. 575 
 mem., 61 Pac. 982. 
 
 Kentucky. — Proctor Coal Co. v. 
 Tye, 96 S. W. 512, 29 Ky. L. Rep. 
 804. 
 
 Michigan. — Kilbourne v. Wiley, 124 
 Mich. 370, 83 N. W. 99, 7 Detroit 
 Leg. N. 269. 
 
 Missouri. — O'Connor v. St. Louis 
 Transit Co., 198 Mo. 622, 8 Ann. Cas. 
 703, 97 S. W. 150, 15 Am. St. Eep. 
 495; Taylor v. St. Louis Transit Co., 
 198 Mo. 715, 98 S. W. 155; Wait v. 
 Atchison, T. & S. F. R. Co., 204 Mo. 
 491, 103 S. W. 60; Taylor v. St. Louis 
 Merchants' Bridge Terminal E. Co., 
 207 Mo. 495, 105 S. W. 740; Young 
 V. Renshaw, 102 Mo. App. 173, 76 
 S. W. 701 ; Yonge v. St. Louis Transit 
 Co., 109 Mo. App. 235, 84 S. W. 184; 
 Conlcling v. Austin, 111 Mo. App. 
 292, 86 S. W. 911; Curtis v. Metro- 
 politan St. R. Co., 118 Mo. App. 341, 
 94 S. W. 762; Curtis v. Metropolitan 
 St. R. Co., 125 Mo. App. 369, 102 
 S. W. 62; Boyle v. Metropolitan St. 
 R. Co., 134 Mo. App. 71, 114 S. W. 
 558; Boyd v. G. W. Chase & Son 
 Mercantile Co., 135 Mo. ,App. 115, 
 115 S. W. 1052; Carter v. Chicago, 
 B. & Q. R. Co., 136 Mo. App. 719, 
 119 S. W. 35; Whitwell v. Aurora, 
 139 Mo. App. 597, 123 S. W. 1045; 
 United Rys. Co. v. O'Connor, 153 Mo. 
 App. 128, 132 S. W. 262. 
 
 Nebraska. — Lewis v. Omaha St. E. 
 Co., 114 N. W. 281. 
 
 New York. — N. Y. Judiciary Law 
 
§ 641] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1043 
 
 attaches to the settlement,^' the money received in settlement being 
 
 475 ; Brown v. Comstoek, 10 Barb. 67 ; 
 Lee V. Vacuum Oil Co., 126 N. Y. 
 579, 27 N. E. 1018; Poole v. Beloha, 
 131 N. Y. 200, 30 N. E. 53; Peri v. 
 New York Cent. & H. E. R. Co., 152 
 N. Y. 521, 46 N. E. 849, affirming 
 12 App. Div. 625, 43 N. Y. S. 1162; 
 Fischer-Hansen v. Brooklyn Heights 
 R. Co., 173 N. Y. 492, 66 N. E. 395; 
 Harris v. Cuff, 48 Hun 617 mem., 1 
 N. Y. S. 349; Hart v. New York, 69 
 Hun 237, 23 N. Y. S. 555, affirmed 
 139 N. Y. 610, 35 N. E. 204; White 
 V. Sumner, 16 App. Div. 70, 44 N. 
 Y. S. 692; Zaitz v. Metropolitan St. 
 E. Co., 52 App. Div. 626, C5 N. Y. S. 
 395; Evans v. Muller, 74 App. Div. 
 630, 77 N. Y. S. 1027; Rogers v. 
 Marcus, 93 App. Div. 553, 87 N. Y. S. 
 941, reversmg 40 Misc. 442, 82 N. Y. 
 S. 707; Oishei v. Pennsylvania R. 
 Co., 117 App. Div. 110, 102 N. Y. S. 
 368; Knickerbocker Inv. Co. v. Voor- 
 hecs, 128 App. Div. 639, 112 N, Y. 
 S. 842; Canary v. Russell, 10 Misc. 
 597, 24 Civ. Proc. 109, 31 N. Y. S. 
 291; Williams v. Wilson, 18 Misc. 
 42, 75 N. Y. St. Rep. 451, 40 N. Y. 
 S. 1132; Schriever v. Brooklyn 
 Heights R. Co., 30 Misc. 145, 30 Civ. 
 Proc. 67, 61 N. Y. S. 644, 890, modi- 
 fied 49 App. Div. 629, 63 N. Y. S. 
 217; Fenwiek v. Mitchell, 34 Misc. 
 617, 70 N. Y. S. 667, reversed 64 App. 
 Div. 621, 72 N. Y. S. 1102; Cohn v. 
 Polstein, 41 Misc. 431, 84 N. Y. S. 
 1072; Witmark v. Perley, 43 Misc. 
 14, 86 N. Y. S. 756; Van Der Beek 
 V. Thomason, 50 Misc. 524, 99 N. Y. 
 S. 538; Davis v. Bowe, 54 Super. Ct. 
 520, 3 N. Y. St. Rep. 530; Crouch v. 
 Hoyt, 24 Civ. Proc. 60, 1 N. Y. Ann. 
 Cas. 76, 30 N. Y. S. 406; Adsit v. 
 Hall, 3 How, Pr. N. S. 373; In re 
 
 Kaufman, 113 N. Y. S. 525. See also 
 Meighan v. American Grass Twine 
 Co., 154 Fed. 346, 83. C. C. A. 124 
 (decided under the New York stat- 
 ute). 
 
 Ohio. — Council v. Brumback, 10 
 Ohio Cir. Dec. 149, 18 Ohio Cir. Ct. 
 502. 
 
 Oregon. — Stearns v. Wollenberg, 
 51 Ore. 88, 92 Pac. 1079, 14 L.R.A. 
 (N.S.) 1095. 
 
 Tennessee. — Illinois Cent. R. Co. 
 V. Wells, 104 Tenn. 706, 59 S. W. 
 1041; Tompkins v. Nashville, C. & 
 St. L. E. Co., 110 Tenn. 157, 72 S. 
 W. 116, 100 Am. St. Rep. 795, 61 
 L.R.A. 340; Ingersoll v. Coal Creek 
 Coal Co„ 117 Tenn. 263, 10 Ann. 
 Cas. 829, 98 S. W. 178, 119 Am. St. 
 Rep. 1003, 9 L.R.A.(N.S.) 282. 
 
 Utah. — Comp. Laws of Utah, § 
 135. 
 
 Washington. — McRea v. Warehime, 
 49 Wash. 194, 94 Pac. 924. 
 
 Wisconsin. — Rice v. Garnhart, 35 
 Wis. 282; Kusterer v. Beaver Dam, 
 56 Wis. 471, 14 N. W. 617, 43 Am. 
 Rep. 725. 
 
 11 Illinois. — Sutton v. Chicago R. 
 Co., 258 111. 551, 101 N. E. 940. 
 
 Missouri. — Conkling v. Austin, 111 
 Mo. App. 292, 86 S. W. 911; Belch 
 V. Schott, 157 S. W. 658. 
 
 Neiv York. — Fischer-Hansen v. 
 Brooklyn Heights R. Co., 173 N. Y. 
 492, 66 N. E. 395, reversing 63 App. 
 Div. 356, 71 N. Y. S. 513; Oishei c. 
 Pennsylvania R. Co., 117 App. Div. 
 110, 119, 102 N. Y. S. 368, 374, af- 
 firmed 191 N. Y. 544, 85 N. E. 3113; 
 Canary v. Russell, 10 Misc. 597, 24 
 Civ. Proc. 109, 31 N. Y. S. 291; Fen- 
 wick I. Mitchell, 34 Misc. 617, 70 
 N. Y. S. 667, reversed 64 App. Div. 
 
1044 SETTLEMENT, DISMISSAL, ETC. [§ 642 
 
 deemed to have been "recovered." ^^ In providing for attorney's 
 liens of the character under consideration it was not intended to 
 prevent the honest settlement of matters in dispute by the parties 
 themselves, otherwise such statutes would be, to say the least, of 
 doubtful validity ; *^ but the purpose was to prevent the settlement 
 of litigation out of court so as to defeat the collection of fees for 
 professional services rendered.^* And it has been held that, even 
 in the absence of statute, the court has inherent power to protect 
 counsel in this respect should the circumstances warrant the exer- 
 cise thereof.'* In most jurisdictions, however, an attorney's charg- 
 ing lien is only effective when the adverse party has had notice 
 thereof." 
 
 § 642. Fraudulent Settlements. — The rule that courts look 
 with favor upon a compromise and settlement made by the parties 
 to a suit with the consent of all persons concerned, to prevent the 
 vexation and expense of further litigation, applies only where the 
 rights and interests of all parties have been respected and good 
 faith observed ; " and, therefore, a settlement entered into for the 
 purpose of defrauding an attorney out of his compensation will 
 not be upheld.^' Settlements made out of court, it has been said, 
 
 621, 72 N. Y. S. 1102; Witmark v. 88, 92 Pac. 1079, 14 L.R.A.(X.S.) 
 Perley, 43 Misc. 14, 86 N. Y. S. 756 ; 1095. See also supra, § 613. 
 In re Kaufman, 113 N. Y. S. 525. 16 Newport Rolling Mill Co. v. Hall, 
 rejimessee.— Illinois Cent. E. Co. v. 147 Ky. 598, 144 S. W. 760. And 
 Wells, 104 Tenn. 707, 59 S. W. 1043; see supra, §§ 600-605. 
 Tompkins v. Nashville, C. & St. L. n Weeks v. Wayne Circuit Judges, 
 R. Co., 110 Tenn. 157, 72 S. W. 116, 73 Mich. 256, 41 N. W. 269. 
 100 Am. St. Rep. 795, 61 L.R.A. 340. is United States.— AngeW v. Ben- 
 Compare Humptiilips Driving Co. v. nett, 1 Spr. 85, 1 Fed. Cas. No. 387; 
 Cross, 65 Wash. 636, 118 Pac. 827, Johnson v. A Raft of Spars, 13 Fed. 
 37 L.R.A.(N.S.) 226. Cas. No. 7,370a; Swanson v. Chicago, 
 
 12 Standidge v. Chicago R. Co., 254 St. P. & K. C. R. Co., 35 Fed. 638. 
 111. 524, Ann. Cas. 1913C 65, 98 N. Georjfia.— McDonald v. Napier, 14 
 E. 963, 40 L.R.A.{N.S.) 529. Ga. 89. 
 
 13 See supra, § 435. Illinois. — North Chicago St. E. Co. 
 
 14 Tompkins v. Nashville, C. & St. v. Ackley, 58 111. App. 572. 
 
 L. R. Co., 110 Tenn. 157, 72 S. W. /ndioBo.— Miedreich v. Rank, 40 
 
 116, 100 Am. St. Rep. 795, 61 L.R.A. Ind. App. 393, 82 N. E. 117. 
 
 340. Kentucky.— B.owe r. Fogle, 88 Ky. 
 
 16 Stearns v. Wollenberg, 51 Ore. 105, 10 S. W. 426, 2 L.R.A. 708; 
 
§ 642] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1045 
 
 will be viewed with suspicion, and closely scrutinized for fraud,*' 
 as the court is bound to shield its attorneys, as well as litigants, 
 from transactions so tainted.'" Indeed, attorney's liens are based 
 on the idea that counsel should not be deprived of their compen- 
 sation by the unfair conduct of their clients ; * and in some juris- 
 dictions it is expressly provided by statute that good faith must 
 exist in settlements between the parties.' What constitutes fraud 
 must, of course, depend on the facts of the paiiicular case ; thus, 
 it has been held that it is a fraud upon counsel for a client to 
 settle a suit without his knowledge, withhold his fees, and then 
 set up the statute of limitations.^ So, it has been held that the 
 settlement of an action without adequate consideration is, in itself, 
 evidence of bad faith.* But one who has participated in a collusive 
 settlement of his litigation cannot thereafter complain on his 
 attorney's account.* 
 
 Hubble V. Dunlap, 101 Ky. 419, 41 S. 
 W. 432. 
 
 Minnesota. — See Desaman v. But- 
 ler, 118 Minn. 198, 136 N. W. 747. 
 
 Missouri. — Curtis v. Metropolitan 
 St. R. Co., 118 Mo. App. 341, 94 S. 
 W. 762. 
 
 Nebraska. — Zentmire v. Bra.i\ej, 89 
 Neb. 158, 130 N. W. 1047. 
 
 Neiv Hampshire. — ^Young v. Dear- 
 born, 27 N. H. 324. See also Chris- 
 tie V. Sawyer, 44 N. H. 298. 
 
 New J'ersej/.-^Den v. Heister, 1 7 N. 
 J. L. 438. 
 
 New York. — ^Payn v. Parks, 1 How. 
 Pr. 94; Marquat v. Mulvy, 9 How. 
 Pr. 460; Dietz v. McCallum, 44 How. 
 Pr. 493; Martin v. Hawks, 15 Johns. 
 405; Kuehn v. Syracuse Rapid Tran- 
 sit R. Co., 183 N. Y. 456, 76 N. B. 
 589, reversing 104 App. Div. 580, 93 
 N. Y. S. 883. 
 
 Utah. — Potter v. Ajax Min. Co., 19 
 Utah 421, 57 Pac. 270. 
 
 West Virginia. — Burkhart v. Scott, 
 69 W. Va. 694, 72 S. E. 784. 
 
 Wisconsin. — Voell v. Kelly, 64 Wis. 
 504, 25 N. W. 536. 
 
 Canada. — Stewart v. Hall, 17 Mani- 
 toba 653. 
 
 19 Miedreich v. Rank, 40 Ind. App. 
 393, 82 N. E. 117; Falconio v. Lar- 
 sen, 31 Ore. 137, 48 Pae. 703, 37 
 L.R.A. 254. Compare Plummer v. 
 Great Northern R. Co., 60 Wash. 214, 
 110 Pac. 989, 31 L.R.A. (N.S.) 
 1215. 
 
 20 Marquat V. Mulvy, 9 How. Pr. 
 (N. Y.) 460. 
 
 lln re Baxter, 154 Fed. 22, 83 C. 
 C. A. 106. And see also supra, 
 § 580. 
 
 2 Hubble V. Dunlap, 101 Ky. 419, 
 41 S. W. 432, 19 Ky. L. Rep. 656; 
 Proctor Coal Co. •;;. Tye, 123 Ky. 
 381, 96 S. W. 512, 29 Ky. L. Rep. 
 804. 
 
 3Lichty V. Hugus, 55 Pa. St. 434. 
 
 * Jackson v. Stearns, 48 Ore. 25, 
 84 Pac. 798, 5 L.R.A. (N.S.) 390. 
 
 SMcBratney v. Rome, W. & 0. R. 
 Co., 87 N. Y. 467. 
 
1046 SETTLEMENT, DISMISSAL, ETC. [§§ 643, 644 
 
 § 643. Settlement Pending Appeal. — The fact that an ap- 
 peal is pending does not affect a client's right to settle with his 
 adversary,* providing he does so in good faith ; '' but where lien 
 rights exist as to the cause of action, such settlements do not affect 
 the attorney's lien.' And in some jurisdictions the prosecution of 
 an appeal does not vacate the judgment entered below, nor affect 
 the attorney's lien thereon.' 
 
 § 644. Effect of Contract for Part of Subject-Matter of 
 Litigation. — The fact that a contract for compensation entitles 
 the attorney to a portion of the recovery does not, as a general 
 rule, prevent the parties from adjusting their differences amicably 
 without reference to the contract; ^^ but in some jurisdictions con- 
 tracts of this character are given the effect of a lien upon the cause 
 of action, on the theory that they operate as equitable assignments ; 
 and in others they are sanctioned by statute, so that, in either 
 case, an attorney, having such a contract, is protected against set- 
 tlement by his client,** providing, of course, that the adverse party 
 
 S/oioo. — Winslow v. Central Iowa v. La Dow, 102 Mich. 345, 60 N. W. 
 
 E. Co., 71 la. 197, 32 N. W. 330. 761; Sweet v. Bartlett, 4 Sandf. (N. 
 
 Kentucky. — Louisville & N. E.. Co. Y.) 661. And see also supra, § 641. 
 
 !'. Proctor, 51 S. W. 591, 21 Ky. L. 9 Covington v. Bass, 88 Tenn. 496, 
 
 Rep. 447 ; Bell v. Wood, 7 Ky. L. 12 S. W. 1033. And see infra, § 645. 
 
 Rep. 516. 10 Arkansas. — De GraflFenreid v. St. 
 
 Massachusetts. — Getchell v. Clark, Louis S. W. E. Co., 66 Ark. 260, 50 
 
 5 Mass. 309. g_ y^ 272. 
 
 Jlfisso«ri.— Stephens v. Metropoli- /otoa.— Larned v. Dubuque, 86 la. 
 
 tan St. E. Co., 157 Mo. App. 656, jgg^ 53 j^ ^ j^g. Barnabee v. 
 
 Holmes, 115 la. 581, 88 N. W. 1098. 
 
 Minnesota. — Nielsen v. Albert Lea, 
 
 91 Minn. 388, 98 N. W. 195; Boorgen 
 
 138 S. W. 904. 
 
 New York. — Brown v. Comstock, 10 
 Barb. 67, 3 Code Eep. 142 ; McDowell 
 v. Appleby, 1 How. Pr. 229; Sweet 
 
 r. Bartlett, 4 Sandf. 661; Pulver v. "• ^t- Paul City R. Co., 97 Minn. 51, 
 
 Harris, 52 N. Y. 73. ^^^ ^- W- 104, 114 Am. St. Rep. 
 
 Tejmessee.— Johnson j;. Story, 1 Lea 691, 3 L.R.A.(N.S.) 379. 
 
 114; Covington v. Bass, 88 Tenn. Mississippi.— Mosely v. Jamison, 
 
 498, 12 S. W. 1033. 71 Miss. 456, 14 So. 529. 
 
 7 See supra, § 642. Washington. — McRea v. Warehime, 
 
 8 Dodge V. Schell, 20 Blatchf. (U. 49 Wash. 194, 94 Pac. 924. 
 
 S.) 517; Walker v. Equitable Mortg. ^^ Calif orrda. — Stockton Savings & 
 
 Co., 114 Ga. 862, 40 S. E. 1010; Kirby Loan Soc. v. Donnelly, 60 Gal. 481. 
 
645] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1047 
 
 has notice of the existence of the contract, or, where they are regu- 
 lated by statute, that the statutory requirements have been com- 
 plied with.^* After a judgment has been entered, one having 
 notice of an assignment, or contract equivalent to an assignment, 
 in favor of the plaintiff's attorney, cannot defeat the attorney's 
 rights in the premises by making payment to the plaintiff in 
 person without the attorney's knowledge.** 
 
 § 645. Settlement after Judgment. — A charging lien ac- 
 crues in favor of an attorney, in most jurisdictions, as against a 
 judgment or decree recovered by him for his client ; ** and such 
 lien will not be affected by the payment of the amount due, or any 
 part thereof, to the plaintiff by one who knows, or should have 
 known, of the existence of the lien ; *^ and it has been held that. 
 
 Georgia.— Jones v. Groover, 46 Ga. 
 568; Twiggs v. Chambers, 56 Ga. 279. 
 
 Eentuchy.—Ska,ggs v. Hill, 14 S. 
 W. 363. 
 
 Michigan. — Grand Rapids & I. R. 
 Co. V. Cheboygan Circuit Judge, 161 
 Mich. 181, 126 N. W. 56, 137 Am. St. 
 Kep. 495, 17 Detroit Leg. N. 270. 
 
 Missowri. — Wait v. Atchison, T. & 
 S. F. R. Co., 204 Mo. 491, 103 S. W. 
 60. 
 
 'Nebra.ika. — Lavender v. Atkins, 20 
 Neb. 206, 29 N. W. 467. 
 
 Texas. — Powell v. Galveston, H. & 
 S. A. R. Co., 78 S. W. 975; St. Louis 
 & S. F. R. R. Co. V. Dysart, 130 S. 
 W. 1047. 
 
 Wisconsin. — Rice v. Garnhart, 35 
 Wis. 282. 
 
 12 Connell v. Brumback, 10 Ohio 
 Cir. Dee. 149, 18 Ohio Cir. Ct. 502; 
 Stearns v. WoUenberg, 51 Ore. 88, 
 92 Pac. 1079, 14 L.R.A.(N.S.) 1095; 
 McRea v. Warehime, 49 Wash. 194, 
 94 Pac. 924. 
 
 13 Ross V. C. R. I. & P. R. Cc , 55 
 la. 691, 8 N. W. 644; Louisville & 
 
 .N. K, Co. V. Proctor, 51 S. W. 591, 
 
 21 Ky. L. Rep. 447; Weeks v. Wayne 
 Circuit Judges, 73 Mich. 256, 41 N. 
 W. 269; Kilbourne v. Wiley, 124 
 Mich. 370, 83 N. W. 99, 7 Detroit 
 Leg. N. 269. 
 
 14 See supra, §§ 634-637. 
 
 15 United States. — Foster v. Dan- 
 forth, 59 Fed. 750. 
 
 Colorado. — Johnson v. McMillan, 13 
 Colo. 423, 22 Pac. 769 ; Flint v. Hub- 
 bard, 16 Colo. App. 464, 66 Pac. 446. 
 
 Connecticut. — Andrews v. Morse, 12 
 Conn. 444, 31 Am. Dec. 752. 
 
 Georgia. — McDonald v. Napier, 14 
 Ga. 89. 
 
 Iowa. — Fisher v. Oskaloosa, 28 la. 
 381; Brainard v. Elwood, 53 la. 30, 
 3 N. W. 799 ; Winslow v. Central Iowa 
 R. Co., 71 la. 197, 32 N. W. 330; 
 Lamed i>. Dubuque, 86 la. 166, 53 
 N. W. 105; Parsons v. Hawley, 92 
 la. 175, 60 N. W. 520; Wallace v. 
 Chicago, M. & St. P. R. Co., 112 la. 
 565, 84 N. W. 662. 
 
 Kentucky. — Stephens v. Farrar, 4 
 Bush 13; Louisville & N. R. Co. v. 
 Proctor, 51 S. W. 591. 
 
1048 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 645 
 
 SO far as the question of the attorney's lien is concerned, the judg- 
 ment exists from the time the court orders the entry thereof.** 
 Of course, there is nothing to prevent the defendant from making 
 payment to the plaintiff personally, and obtaining a satisfaction 
 of the judgment subject to the attorney's lien;" and where the 
 efficacy of the lien is dependent on notice, the absence thereof will 
 warrant the payment of the judgment debt to the plaintiff, and 
 such payment will relieve the defendant from any subsequent 
 claim of lien by the plaintiff's attorney.** Nor will the fact that 
 
 Louisiana. — Safford V. Carroll, 23 
 La. Ann. 382. 
 
 Main^. — Gammon v. Chandler, 30 
 Me. 152; Bickford v. Ellis, 50 Me. 
 121; Newbert v. Cunningham, 50 Me. 
 231, 79 Am. Dec'. 612; Cooly v. Pat- 
 terson, 52 Me. 472; McKenzic v. 
 Wardwell, 61 Me. 136; Stratton v. 
 Hussey, 62 Me. 286. 
 
 Michigan. — Weeks v. Wayne Cir- 
 cuit Judges, 73 Mich. 256, 41 N. W. 
 269; Millard v. Jordan, 76 Mich. 131, 
 42 N. W. 1085; Lindner v. Hine, 84 
 Mich. 511, 48 N. W. 43. 
 
 Minnesota. — ^Northrup v. Hayward, 
 102 Minn. 307, 12 Ann. Cas. 341, 113 
 N. W. 701. 
 
 Nebraska. — Jones v. Duff Grain Co., 
 69 Neb. 91, 95 N. W. 1. 
 
 New Jersey. — Barnes v. Taylor, 30 
 N. J. Eq. 467; Braden v. Ward, 42 
 N. J. L. 521. 
 
 New York. — ^Martin v. Hawks. 15 
 Johns. 405; Talcott v. Bronson, 4 
 Paige 501; Ten Broeck v. De Witt, 
 10 Wend. 617; Adams v. Fox, 40 
 Barb. 442; Pinder v. Morris, 3 Caines 
 165; Power v. Kent, 1 Cow. 172; 
 Hall V. Ayer, 19 How. Pr. 91, 9 Abb. 
 Pr. 220; Fox v. Fox, 24 How. Pr. 
 409; In re Bailey, 66 How. Pr. 64; 
 Grotty V. McKenzie, 42 Super. Ct. 
 192; Woolf V. Jacobs, 45 Super. Ct. 
 583; In re Bailey, 4 Civ. Proc. 140; 
 
 Hommeyer v. Beere, 13 Civ. Proc. 
 369; Johnson v. Anderson, 1 Code 
 Rep. N. S. 209 note; Eberhardt v. 
 Schuster, 10 Abb. N. Cas. 374; Rooney 
 V. Second Ave. R. Co., 18 N. Y. 368; 
 Pulver V. Harris, 52 N. Y. 73 ; Bailey 
 V. Murphy, 136 N. Y. 50, 32 N. E. 
 627, affirming 51 Hun 643 mem., 4 
 N. Y. S. 579; Commercial Telegram 
 Co. V. Smith, 57 Hun 176, 19 Civ. 
 Proc. 32, 10 N. Y. S. 433; Roberts v. 
 Union El. R. Co., 84 Hun 437, 32 N. 
 Y. S. 387; Baxter v. Connor, 119 
 App. Div. 450, 104 N. Y. S. 327; 
 Bloch V. Bloeh, 136 App. Div. 770, 
 121 N. Y. S. 475; Vrooman v. Pick- 
 ering, 25 Misc. 277, 28 Civ. Proc. 
 302, 54 N. Y. S. 389. 
 
 South Dakota. — Leighton v. Serve- 
 son, 8 S. D. 350, 66 N. W. 938. 
 
 Tennessee. — Covington v. Bass, 88 
 Tenn. 496, 12 S. W. 1033. 
 
 Vermont. — Hutchinson v. Pettes, 18 
 Vt. 614; Hooper v. Welch, 43 Vt. 
 169, 5 Am. Rep. 268. 
 
 West Virginia. — Renick v. Luding- 
 ton, 16 W. Va. 378. See also supra, 
 § 643, as to settlement pending ap- 
 peal. 
 
 18 Young V. Dearborn, 27 N. H. 
 324. 
 
 n Boyle V. Metropolitan St. R. Co., 
 134 Mo. App. 71, 114 S. W. 558. 
 
 18 Colorado State Bank v. Davidson,. 
 
§ 646] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1049 
 
 a lien exists in favor of the plaintiff's attorney, affect any sub- 
 stantial right of the adverse party, as, for instance, the right to 
 discharge the indebtedness with depreciated funds.^* 
 
 Dismissal, Substitution, and Assignment. 
 
 § 646. Dismissal. — Where lien rights exist in favor of an at- 
 torney as against his client's cause of action,*" or as against money 
 and funds in the hands of the adverse party or some other per- 
 son,^ or as against any other subject-matter of litigation,* a liti- 
 gant will not, as a general rule, be permitted to discontinue or 
 dismiss his action to the prejudice of the attorney's rights in the 
 premises ; ' and this is particularly true after judgment has been 
 entered.* In some jurisdictions, however, a dismissal will be al- 
 
 7 Colo. App. 91, 42 Pac. 687; Haw- 
 kins V. Loyless, 39 Ga. 5; Green v. 
 Southern Exp. Co., 39 Ga. 20; Flor- 
 ida Cent. & P. R. Co. v. Eagan, 104 
 Ga. 353, 30 S. E. 745; Finder v. Mor- 
 ris, Colem. & C. Caa. (N. Y.) 489. 
 
 19 Neil V. Staten, 7 Heisk. (Tenn.) 
 290. 
 
 20 See supra, §§ 613-617. 
 
 1 See supra, §§ 618-626. 
 
 2 See supra, §§ 627-633. 
 
 S Georgia. — Twiggs v. Chambers, 56 
 Ga. 279. 
 
 Indiana. — See Miedreich v. Kank, 
 40 Ind. App. 393, 82 N. E. 117. 
 
 Kansas. — Koot v. Topeka Water 
 Supply Co., 46 Kan. 183, 189, 26 Pac. 
 398, 400. 
 
 Kentucky. — Skaggs v. Hill, 14 S. 
 W. 363. 
 
 Michigan. — ^Heavenrich v. Alpena 
 Circuit, Judge, 111 Mich. 163, 69 N. 
 W. 226, 3 Detroit Leg. N. 641. 
 
 Nebraska. — Williams v. Miles, 63 
 Neb. 851, 89 N. W. 455. 
 
 Sew HampsMre. — Young v. Dear- 
 born, 27 N. H. 324. 
 
 Neio York. — Kuehn v. Syracuse 
 
 Rapid Transit R. Co., 104 App. Div. 
 580, 93 N. Y. S. 883, affirmed 186 N. 
 Y. 567, 79 N. E. 1109, previously re- 
 versed on other grounds, 183 N. Y. 
 456, 76 N. E. 589; Stilwell v. Arm- 
 strong, 28 Mise. 546, 59 N. Y. S. 671 ; 
 Pickard v. Yencer, 10 N. Y. Wkly. 
 Dig. 271; Eberhardt v. Schuster, 10 
 Abb. N. Cas. 374; Owen v. Mason, 
 18 How. Pr. 156; Dietz v. McCallum, 
 44 How. Pr. 493. 
 
 South Carolina. — Miller v. Newell, 
 20 S. C. 123, 47 Am. Rep. 833. 
 
 Tennessee. — Pleasants v. Kortrecht, 
 5 Heisk. 694; Covington v. Bass, 88 
 Tenn. 498, 12 S. W. 1033. 
 
 Wisconsin. — Howard v. Osceola, 22 
 Wis. 453. 
 
 4 United States. — Dodge v. Schell, 
 20 Blatchf. 517; Foster v. Danforth, 
 59 Fed. 750. 
 
 Colorado. — Johnson v. McMillan, 13 
 Colo. 423, 22 Pac. 769. 
 
 Gonnecticu.t. — Andrews v. Morse, 
 12 Conn. 444, 31 Am. Dec. 752. 
 
 Iowa. — Fisher v. Oskaloosa, 28 la. 
 381; Brainard v. Elwood, 53 la. 30, 
 3 N. W. 799; Winslow v. Central 
 
1050 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 646 
 
 lowed, notwithstanding the existence of an attorney's lien, if it 
 appears that the client is financially responsible.' And where no 
 lien rights exist in favor of the attorney, a litigant may discon- 
 tinue or dismiss an action or proceeding without the consent of 
 his counsel ; * nor is there anything to prevent a litigant, acting 
 fairly and honestly, from abandoning a suit, whether an attorney's 
 lien has accrued with respect thereto or not.'' Where a plaintiff, 
 without the knowledge or consent of his attorney, settles the action 
 collusively for the purpose of depriving the attorney of his fees, 
 the latter may, by giving notice to the party sought to be charged 
 of his intention to continue the cause in the name of his client 
 for the recovery of his fees only, proceed with the suit for that 
 
 Iowa R. Co., 71 la. 197, 32 N. W. 
 330; Larned v. Dubuque, 86 la. 166, 
 53 N. W. 105. 
 
 Kentucky. — Stephens v. Farrar, 4 
 Bush 13. 
 
 Louisiana. — SaflFord v. Carroll, 23 
 La. Ann. 382. 
 
 Maine. — Bickford v. Ellis, 50 Me. 
 121; Newbert v. Cunningham, 50 Me. 
 231, 79 Am. Dec. 612; Cooly v. Pat- 
 terson, 52 Me. 472; McKenzie v. 
 Wardwell, 61 Me. 136. 
 
 Michigan. — Weeks v. Wayne Cir- 
 cuit Judges, 73 Mich. 256, 41 N. W. 
 269 ; Millard v. Jordan, 76 Mich. 131, 
 42 N. W. 1085. 
 
 New Jersey. — Barnes v. Taylor, 30 
 N. J. Eq. 467; Braden v. Ward, 42 
 N. J. L. 521. 
 
 Neio York. — Bailey v. Murphy, 136 
 N. Y. 50, 32 N. E. 627, affirming 51 
 Hun 643 mem., 4 N. Y. S. 579; Rob- 
 erts V. Union El. R. Co., 84 Hun 437, 
 32 N. Y. S. 387. 
 
 South Dakota. — Lelghton v. Serve- 
 son, 8 S. D. 350, 66 N. W. 938. 
 
 Tennessee. — Covington v. Bass. 88 
 Tenn. 496, 12 S. W. 1033. 
 
 Texas. — Marschall v. Smith, 132 S. 
 W. 812. 
 
 Vermont. — ^Hutchinson v. Pettes, 18 
 Vt. 614; Hooper v. Welch, 43 Vt. 
 169, 5 Am. Rep. 267. 
 
 West Virginia. — Reniek v. Luding- 
 ton, 16 W. Va. 378. See also supra, 
 §§ 634-637, as to lien rights against 
 judgments and decrees. 
 
 B Mitchell V. Mitchell, 143 App. 
 Div. 172, 127 N. Y. S. 1065; Wit- 
 mark V. Perley, 43 Misc. 14, 86 N. 
 Y. S. 756. 
 
 6 Cameron v. Boeger, 102 HI. App. 
 649, affirmed 200 111. 84, 65 N. E. 
 690, 93 Am. St. Rep. 165; Rowe V. 
 Eogle, 88 Ky. 105, 10 S. W. 426, 2 
 L.R.A. 708, 10 Ky. L. Rep. 689; 
 Sheedy v. McMurtry, 44 Neb. 499, 63 
 N. W. 21; Evans I!. MuUer, 74 App. 
 Div. 630, 77 N. Y. S. 1027. 
 
 ''De Wandelaer v. Sawdey, 78 
 Conn. 654, 63 Atl. 446; Matter of 
 Evans' Will, 58 App. Div. 502, 10 
 N. Y. Ann. Cas. 32, 69 N. Y. S. 482, 
 rehearing denied 65 App. Div. 610, 
 72 N. Y. S. 493; Sullivan v. McCann, 
 113 App. Div. 61, 37 Civ. Proc. 113, 
 98 N. Y. S. 947; Landreth v. Powell, 
 122 Tenn. 195, 121 S. W. 500; Foot 
 V. Tewksbury, 2 Vt. 97. 
 
§§ 647, 648] SETTLEMENT, DISMISSAL, ETC. 
 
 1051 
 
 purpose, and hence is not entitled to maintain a proceeding to 
 enjoin the dismissal.* 
 
 § 647. Substitution. — An attorney's right to a lien for serv- 
 ices rendered cannot be defeated by substitution.® It is not doubt- 
 ed, of course, that the client may discharge his attorney at pleas- 
 ure, and substitute another in his stead ; "* but, in allowing such 
 substitution, it is customary to impose terms whereby the original 
 attorney is protected in his compensation.^^ Where an attorney 
 abandons the cause of his client without justification, he will be 
 deemed to have lost his right to compensation,^^ and to a lien 
 therefor ; ^* and in those cases it would seem that substitution may 
 be made without regard to the attorney's lien rights.^* 
 
 § 648. Assignment of Judgment. — An assignee of a judg- 
 ment takes subject to an attorney's lien thereon, whether he has 
 notice thereof or not.^' The reason usually assigned for this rule 
 
 8 Jackson v. Stearns, 48 Ore. 25, 
 84 Pac. 798, 5 L.R.A.(N.S.) 390. 
 
 9 United States. — In re Paschal, 10 
 Wall. 496, 19 U. S. (L. ed.) 992; 
 Dodge V. Schell, 12 Fed. 515, 14 Rep. 
 39, 10 Abb. N. Cas. (N. Y.) 465; 
 Konald v. Mutual Reserve Fund Life 
 Ass'n, 30 Fed. 228. 
 
 Alabama. — Kelly v. Horsely, 147 
 Ala. 508, 41 So. 902. 
 
 Iowa. — Gibson v. Chicago, M. & St. 
 P. R. Co., 122 la. 565, 98 N. W. 474. 
 
 New Jersey. — Hudson Trust & Sav- 
 ings Inst. V. Carr-Curran Paper Mills, 
 44 Atl. 638. 
 
 Neto Yorfc.^Creighton v. Ingersoll, 
 20 Barb. 541; Jeffards v. Brooklyn 
 Heights R. Co., 49 App. Div. 45, 63 
 N. Y. S. 530; Kunath v. Bremer, 53 
 App. Div. 271, 65 N. Y. S. 830; 
 Bryant v. Brooklyn Heights E. Co., 
 64 App. Div. 542, 72 N. Y. S. 308; 
 Randel v. Vanderbilt, 75 App. Div. 
 313, 78 N. Y. S. 124; Kane v. Rose, 
 87 App. Div. 101, 84 N. Y. S. Ill, 
 
 affirmed 177 N. Y. 557, 69 N. E. 
 1125; Johnson v. Ravitch, 113 App. 
 Div. 810, 99 N. Y. S. 1059; Sciolaro 
 V. Asch, 137 App. Div. 667, 122 N. Y. 
 S. 518, 137 App. Div. 946, 126 N. y. 
 S. 1151; O'Sullivan v. Metropolitan 
 St. R. Co., 39 Misc. 269, 79 N. Y. S. 
 481; Fenlon v. Paillard, 46 Misc. 151, 
 93 N. Y. S. 1101; Lederer v. Gold- 
 ston, 63 Misc. 322, 117 N. Y. S. 151; 
 Schneible v. Travelers' Ins. Co., 32 
 Civ. Proc. 273, 73 N. Y. S. 955. 
 
 Utah. — Sandberg v. Victor Gold & 
 Silver Min. Co., 18 Utah 66, 55 Pac. 
 74. 
 
 10 See supra, § 143. 
 
 11 See supra, §§ 147, 148. 
 
 12 See supra, § 453. 
 
 13 See supra, § 610. 
 
 14 Hektograph Co. v. Fourl, 11 Fed. 
 844. 
 
 15 Arkansas. — Sexton v. Pike, 13 
 Ark. 193; Porter V. Hanson, 36 Ark. 
 591. 
 
 Colorado. — Davidson v. La Plata 
 
1052 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 649 
 
 is that an attorney has no practical means of Jmowing to whom a 
 judgment may be assigned, and, therefore, it is hut reasonable to 
 require such an assignee to make the necessary inquiries before 
 taking the assignment.** Thus, it has been held that a statutory 
 provision to the effect that a judgment defendant shall have notice 
 of a lien on the judgment where the record shows the name of the 
 attorney therein, is for the benefit of the defendant alone; and 
 the fact that the attorney's name does not appear of record affords 
 no protection to an assignee of the judgment as against the at- 
 torney's lien thereon." In some jurisdictions, however, compli- 
 ance with certain statutory formalities is mandatory.*' 
 
 § 649. Assignment of Cause of Action. — Nor can a cause 
 of action, or the subject-matter of litigation, be assigned so as to 
 
 County, 26 Colo. 549, 59 Pac. 46; 
 Colorado State Bank v. Davidson, 7 
 Colo. App. 91, 42 Pac. 687. 
 
 District of Columbia. — Hutchinson 
 V. Worthington, 7 App. Cas. 548. 
 
 Georgia. — ^Lovett v. Moore, 98 Ga. 
 158, 26 S. E. 498. 
 
 Illinois. — Hawk v. Ament, 28 111. 
 App. 390. 
 
 Indiana. — Peterson v. Struby, 25 
 Ind. App. 19, 56 N. E. 733, rehearing 
 denied 25 Ind. App. 25, 57 N. E. 599. 
 
 Kentucky. — Central Trust Co. v. 
 Richmond, N. I. & B. R. Co., 105 Fed. 
 803, 45 C. C. A. 60 (construing Ken- 
 tucky statute). 
 
 Massachusetts. — Bruce v, Anderson, 
 176 Mass. 161, 57 N. E. 354. 
 
 Minnesota. — Gill v. Truelsen, 39 
 Minn. 373, 40 N. W. 254; Wetherby 
 V. Weaver, 51 Minn. 73, 52 'n. W. 
 970. 
 
 Neiraska. — ^Yates v. Kinney, 33 
 Neb. 853, 51 N. W. 230; Taylor v. 
 Stull, 79 Neb. 295, 112 N. W. 577. 
 
 New York. — Fairbanks v. Sargent, 
 104 N. Y. 108, 9 N. E. 870, 58 Am. 
 Rep. 490, reversing 39 Hun 588; 
 Guliano v. Whitenack, 9 Misc. 562, 
 
 24 Civ. Proc. 55, 1 N. Y. Ann. Cas. 
 75, 30 N. Y. S. 415; Schriever v. 
 Brooklyn Heights R. Co., 30 Misc. 
 145, 30 Civ. Proc. 67, 61 N. Y. S. 
 644, 890, modified 49 App. Div. 629 
 mem., 63 N. Y. S. 217; Marvin v. 
 Marvin, 22 Civ. Proc. 274, 19 N. Y. S. 
 371. 
 
 South Dakota. — Leighton v. Serve- 
 son, 8 S. D. 350, 66 N. W. 938. 
 
 Tennessee. — Cunningham v. Mc- 
 Grady, 2 Baxt. 141; Taylor v. Ba- 
 doux, 58 S. W. 919. 
 
 Vermont. — ^Weed Sewing Macli. Co. 
 V. Boutelle, 56 Vt. 570, 48 Am. Eep. 
 821; Parker v. Parker, 71 Vt. 387, 
 45 Atl. 756. 
 
 West Virginia. — Bent v. Lipscomb, 
 45 W. Va. 183, 31 S. E. 907, 72 Am. 
 St. Rep. 815. 
 
 16 In Heartt v. Chipman, 2 Aikens 
 (Vt.) 162. 
 
 IT Tyler v. Slemp, 124 Ky. 209, 90 
 S. W. 1041. 
 
 18 Colorado State Bank v. Davidson, 
 7 Colo. App. 91, 42 Pac. 887; Alder- 
 man I). Nelson, 111 Ind. 255, 12 N. E. 
 394. And see also supra, §§ 600-605, 
 as to notice of lien generally. 
 
§ 650] SETTLEMENT, DISMISSAL, ETC. 1053 
 
 defeat an attorney's lien thereon.^' Not will an attorney be pre- 
 cluded from asserting his lien rights by the fact that he knew of 
 an assignment of the subject-matter of the litigation by his client 
 pending suit, and also that the client had agreed to prosecute the 
 action without cost to the assignee.^" In some jurisdictions, how- 
 ever, no lien exists on the client's cause of action, and in others, 
 while such a lien is recognized, it does not attach until judgment 
 has been entered ; ^ and, in those states, a bona fide assignment of a 
 cause of action will prevent the acquisition of an attorney's lien.* 
 
 8et-ojf. 
 
 § 650. Generally. — Set-off, excepting in so far as it was 
 recogTiized in courts of equity, exists only by virtue of statutory 
 authority ; and, for this reason, it is practically impossible to state 
 any rule of general application in relation thereto. Even in the 
 same jurisdiction statutes are frequently changed, and it is neces- 
 sary to examine the local law with reference to the particular case 
 under consideration, in order that a satisfactory solution may 
 be arrived at. It has been held in some jurisdictions that an 
 attorney's lien on a judgment is subordinate to the right of set-off 
 in the adverse party ; * and in others, the contrary rule pre- 
 
 19 United States. — Key v. U. S. 2 La Framboise v. Grow, 56 111. 
 Bank, 1 Hayw. & H. 74, 14 Fed. Cas. 197; Potter v. Mayo, 3 Greenl. (Me.) 
 No. 7,746; Frink v. McComb, 60 Fed. 34, 14 Am. Dec. 211. 
 
 486. 3 United States. — National Bank of 
 
 Nelraska. — Maloney v. Douglas Winterset v. Eyre, 8 Fed. 733, 3 Mc- 
 
 County, 2 Neb. (unofBcial) Rep. 396, Crary 175. 
 
 89 N. W. 248. Alabama. — Ex p. Leliman, 59 Ala. 
 
 Xew York. — Ward v. Lee, 13 Wend. 631; Mosely v. Norman, 74 Ala. 422. 
 
 41 ; Sweet v. Bartlett, 4 Sandf . 661 ; Connecticut. — Benjamin v. Benja- 
 
 Boyle V. Boyle, 106 N. Y. 654, 12 N. min, 17 Conn. 110. 
 
 E. 709 ; Old Colony Realty Co. v. Ait- Kentucky. — Robertson v. Shutt, 9 
 
 ken, 123 App. Div. 404, 107 N. Y. S. Bush 659; Bradford v. Ware's Ex'r, 
 
 1063. 12 Ky. L. Rep, 986 (abstract). Com- 
 
 Termont. — Heartt v. Chipman, 2 pare Brown v. Lapp, 89 S. W. 304, 28 
 
 Aikens 162. Ky. L. Rep. 409. 
 
 20 Niagara Fire Ins. Co. v. Hart, 13 Maryland. — Marshall v. Cooper, 43 
 Wash. 651, 43 Pac. 937. Md. 46; Levy v. Steinbach, 43 Md. 
 
 1 See supra, §§ 613-617. 212. 
 
1054 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 651 
 
 vails.* It seems to be conceded that a right of set-oif in the adverse 
 party, acquired subsequently to the acquisition of the attorney's 
 lien, is subordinate to such lien.* 
 
 The foregoing statements have reference only to charging liens.* 
 No right of set-off exists as to retaining liens.' 
 
 § 651. Set-off of One Judgment against Another. — 
 
 Where, in the same litigation, judgments have been entered in 
 favor of both parties, for costs or otherwise, one of such judg- 
 ments may be set off against the other without reference to the 
 attorney's lien for compensation, because such lien attaches only 
 to the clear balance due the client after all equities have been 
 
 Minnesota. — Lundberg v. Davidson, 
 68 Minn. 328, 71 N. W. 395, 72 N. W. 
 71. 
 
 New York. — De Figaniere v. Young, 
 2 Robt. 670; Perry v. Chester, 36 Su- 
 per. Ct. 228; Brooks v. Hanford, 15 
 Abb. Pr. 342; Bowling Green Sav. 
 Bank v. Todd, 64 Barb. 146; Sanders 
 V. Gillett, 8 Daly 183; Ferguson v. 
 Bassett, 4 How. Pr. 168; Noxon v. 
 Gregory, 5 How. Pr. 339; Turno v. 
 Parks, 2 How. Pr. N. S. 35; Mohawk 
 Bank v. Burrows, 6 Johns. Ch. 317; 
 Dunkin v. Vanderbergh, .1 Paige 622; 
 Firmenich v. Bovee, 4 Thomp. & C. 
 98; Nicoll v. Nicoll, 16 Wend. 446, 
 overruling 2 Edw. 574. Compare 
 Davidson v. Alfaro, 16 Hun 353 ; Bar- 
 ry V. Third Ave. E. Co., 87 App. Div. 
 543, 84 N. Y. S. 830; Bamberger v. 
 Oshinsky, 21 Misc. 716, 48 N. Y. S. 
 139 ; Ennis v. Curry, 61 How. Pr. 1. 
 
 Vermont. — McDonald v. Smith, 57 
 Vt. 502. 
 
 Wisconsin. — Bosworth v. Tallman, 
 66 Wis. 533, 29 N. W. 542. 
 
 * California. — See Hathaway v. Pat- 
 terson, 45 Cal. 294. 
 
 Florida. — Carter v. Bennett, 6 Fla. 
 214; Carter v. Davis, 8 Fla. 183. 
 
 Massachusetts. — Eider v. Ocean Ins. 
 Co., 20 Pick. 259; Little v. Rodgers, 2 
 Mete. 478. 
 
 Nebraska. — Boyer v. Clark, 3 Neb. 
 161; Finney ». Gallop, 2 Neb. (un- 
 official) Rep. 480, 89 N. W. 276; Rice 
 V. Day, 33 Neb. 204, 49 N. W. 1128. 
 Compare Field v. Maxwell, 44 Neb. 
 900, 63 N. W. 62. 
 
 South Dakota. — Hroch v. Aultman 
 & Taylor Co., 3 S. D. 477, 54 N. W. 
 269. 
 
 s Warfield v. Campbell, 38 Ala. 527, 
 82 Am. Dec. 724; Caudle v. Rice, 78 
 Ga. 81, 3 S. E. 7; Puett v. Beard, 86 
 Ind. 172, 44 Am. Rep. 280; Bradt i;. 
 Koon, 4 Cow. (N. Y.) 416. 
 
 6 See supra, § 578, for a definition 
 of the charging lien. 
 
 7 Bamberger v. Oshinsky, 21 Misc. 
 716, 48 N. Y. S. 139; Goodrich v. Mott, 
 9 Vt. 395. And see also supra, § 573, 
 for a definition of the retaining 
 lien. 
 
§ 651] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1055 
 
 settled.' As a general rule, however, the taxable costs due the 
 attorney will be protected.' 
 
 On the other hand, where judgments exist in favor of both 
 parties in different actions, the attorney's lien in either case is 
 superior to the defendant's right of set-off ; ^^ and this is especially 
 true as to the attorney's lien for his taxable costs.'* In some juris- 
 
 S/oioo. — Watson v. Smith, 63 la. 
 228, 18 N. W. 916, following Tiffany 
 V. Stewart, 60 la. 207, 14 N. W. 241. 
 Com/pare Ward v. Sherbondy, 96 la. 
 477, 65 N. W. 413. 
 
 Massachusetts. — Little v. Eodgers, 
 2 Mete. 478. 
 
 Missouri. — State v. U. S. Fidelity 
 & Guaranty Co., 135 Mo. App. 160, 115 
 S. W. 1081. 
 
 tfew York. — Smith v. Chenoweth, 
 14 Daly 166, 6 N. Y. St. Rep. 232; 
 Porter v. Lane, 8 Johns. 357; Chan- 
 ning V. Moore, 11 N. Y. St. Rep. 670. 
 Compare Hovey v. Rubber Tip Pencil 
 Co., 14 Abb. Pr. N. S. 66. 
 
 South Dakota. — Lindsay v. Petti- 
 grew, 8 S. D. 244, 66 N. W. 321; Gar- 
 rigan v. Huntimer, 21 S. D. 269, 111 
 N. W. 563. 
 
 Wisconsin. — Bosworth v. Tallman, 
 66 Wis. 533, 29 N. W. 542. 
 
 9 Indiana. — Johnson v. Ballard, 44 
 Ind. 270. 
 
 Michigan. — Kinney v. Tabor, 62 
 Mich. 517, 29 N. W. 86, 512. 
 
 New Hampshire. — Shapley v. Bel- 
 lows, 4 N. H. 347; Rowe v. Lang- 
 ley, 49 N. H. 395. 
 
 N&w York. — Devoy v. Beyer, 3 
 Johns. 247; Ennis v. Curry, 22 Hun 
 584; Smith v. Cayuga Lake Cement 
 Co., 107 App. Div. 524, 95 N. Y. S. 
 236; Place v. Hayward, 8 Civ. Proc. 
 352; Smith v. Chenoweth, 11 Civ. 
 Proc. 138, 3 N. Y. St. Rep. 265. 
 
 10 Illinois.— Bient v. Brent, 24 111. 
 App. 448. 
 
 Indiana. — Adams v. Lee, 82 Ind. 
 587; Harshman v. Armstrong, 119 
 Ind. 224, 21 N. E. 662. 
 
 S^onsos.— Leavenson v. Lafontane, 3 
 Kan. 523. 
 
 Maine. — Stone v. Hyde, 22 Me. 318; 
 Hooper v. Brundage, 22 Me. 460; 
 Howe V. Klein, 89 Me. 376, 36 Atl. 
 620. 
 
 Minnesota. — Lindholm v. Itasca 
 Lumber Co., 64 Minn. 46, 65 N. W. 
 931. Compare Morton v. Urquhart, 
 79 Minn. 390, 82 N. W. 653. 
 
 NebrasJca. — Ward v. Watson, 27 
 Neb. 768, 44 N. W. 27. 
 
 New Jersey. — Terney v. Wilson, 45 
 N. J. L. 282. 
 
 New York. — Wesley v. Wood, 73 
 Misc. 33, 132 N. Y. S. 248. 
 
 Oftjo.— Diehl v. Friester, 37 Ohio St. 
 473. 
 
 South Dakota. — Mosteller v. Hol- 
 born, 21 S. D. 547, 114 N. W. 693. 
 See also Pirie v. Harkness, 3 S. D. 
 178, 52 N. W. 581. 
 
 Tennessee. — Roberts v. Mitchell, 94 
 Tenn. 277, 29 S. W. 5, 29 L.R.A. 705. 
 
 11 Maine. — Peirce v. Bent, 69 Me. 
 381; Harrington v. Bean, 94 Me. 208, 
 47 Atl. 147; Collins v. Campbell, 97 
 Me. 23, 53 Atl. 837, 94 Am. St. Rep. 
 458. 
 
 Minnesota. — Lundberg v. Davidson, 
 68 Minn. 328, 71 N. W. 395, 72 N. W. 
 71. 
 
1056 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 [§ 652 
 
 dictions, however, the right to set off one judgment against an- 
 other, even though they have been rendered in different proceed- 
 ings, is superior to the attorney's lien.'^ 
 
 The right of set-off generally depends entirely on statute, and it 
 is essential that the local laws should be consulted. 
 
 § 652. Assignment of Judgment to Counsel as Affecting 
 Right of Set-off. — The assignment of a judgment, or any part 
 thereof, to the attorney in payment for his services will be effective 
 as against any right of set-off in the adverse party which did not 
 exist at the time of the assignment; ^^ but such assignment will 
 
 New Jersey. — Brown v. Hendrick- 
 son, 39 N. J. L. 239 ; Phillips v. Mac- 
 kay, 54 N. J. L. 319, 23 Atl. 941; 
 Pride v. Smalley, 66 N. J. L. 578, 52 
 Atl. 955. 
 
 New York. — Kaufman v. Keenan, 13 
 Civ. Proc. 225 ; Ainslie v. Boynton, 2 
 Barb. 258; Cole v. Grant, 2 Caines 
 105; NicoU v. NicoU, 2 Edw. 574; De- 
 voy V. Bowyer, 3 Johns. 247; Dunkin 
 V. Vandenbergh, 1 Paige 622; Jaeger 
 V. Koenig, 33 Misc. 82, 67 N. Y. S. 
 172, reversing 32 Misc. 244, 65 N. Y. 
 S. 795. 
 
 IS Georgia. — Langston v. Eoby, 68 
 Ga. 406; Smith t). Evans, 110 Ga. 536, 
 35 S. E. 633. Compare Caudle v. 
 Rice, 78 Ga. 81, 3 S. E. 7. 
 
 loiea. — Hurst v. Sheets, 21 la. 501 ; 
 Tiffany v. Stewart, 60 la. 207, 14 N. 
 W. 241. 
 
 New Bampshire. — Holt v. Quimby, 
 6 N. H. 79. 
 
 New York. — Hayden v. McDermott, 
 9 Abb. Pr. 14; Cragin v. Travis, 1 
 How. Pr. 157; Ferguson v. Bassett, 4 
 How. Pr. 168; Noxon v. Gregory, 5 
 How. Pr. 339 ; Martin v. Kanouse, 17 
 How. Pr. 146; Firmenich v. Bovee, 4 
 Thomp. & C. 98; Dunkin v. Vander- 
 bergh, 1 Paige 622. Compare Perry v. 
 
 Chester, 53 N. Y. 240; Webb v. Park- 
 er, 130 App. Div. 92, 114 N. Y. S. 
 489; Gridley v. Garrison, 4 Paige 647. 
 
 Vermont. — Fairbanks v. Devereaux, 
 58 Vt. 359, 3 Atl. 500. 
 
 18 United States. — L. Bucki & Son 
 Lumber Co. v. Atlantic Lumber Co., 
 128 Fed. 332, 63 C. C. A. 62. 
 
 Connecticut. — Benjamin v. Benja- 
 min, 17 Conn. 110; Ripley v. Bull, 19 
 Conn. 53. 
 
 Michigan. — Wells v. Elsam, 40 
 Mich. 218. 
 
 New York. — Roberts v. Carter, 9 
 Abb. Pr. 366 note; Peckham v. Bar- 
 calow. Hill & D. 112; Ely v. Cook, 2 
 Hilt. 406, 9 Abb. Pr. 366; Roberts v. 
 Carter, 17 How. Pr. 341; Naylor v. 
 Lane', 50 Super. Ct. 97; Firmenich v. 
 Bovee, 1 Hun 532, 4 Thomp. & C. 98; 
 Delaney v. Miller, 84 Hun 244, 1 N. Y. 
 Ann. Cas. 266, 32 N. Y. S. 505, affirm- 
 ingi 78 Hun 18, 28 N. Y. S. 1059; 
 Palmer r. Palmer, 24 Misc. 217, 53 N. 
 Y. S. 538; Hayes v. Carr, 12 N. Y. St. 
 Rep. 584. 
 
 Oregon. — Ladd v. Ferguson, 9 Ore. 
 180. 
 
 Wisconsin. — Rice v. Garnhart, 35 
 Wis. 282 ; Stanley v. Bouck, 107 Wis. 
 225, 83 N. W. 298. 
 
§ 652] 
 
 SETTLEMENT, DISMISSAL, ETC. 
 
 1057 
 
 be subordinate to a right of set-off which existed at the time the 
 assignment was made.'* An attorney to whom a judgment, or 
 part thereof, has been assigned, may set off the same as against a 
 judgment owned by the defendant against the attorney.*^ 
 
 1* United States. — Fitzhugh v. Mc- 
 Kinney, 43 Fed. 461. 
 
 Kansas. — Turner v. Crawford, 14 
 Kan. 499. 
 
 Maryland. — Marshall v. Cooper, 43 
 Md. 46. 
 
 New York. — Pulver v. Harris, 52 N. 
 Y. 73; Promme v. Gray, 17 Misc. 77, 
 39 N. Y. S. 856; Ferguson v. Bassett, 
 4 How. Pr. 168. 
 
 Attys. at L. Vol. II.— 67. 
 
 North Dakota. — Clark v. Sullivan, 
 3 N. D. 280, 55 N. W. 733. 
 
 Pennsylvania. — In re Aber, 18 Pa. 
 Super. Ct. 110; Johnson v. Hopkins, 1 
 Chest. Co. Rep. 68; Eeardon v. Peirce, 
 1 Chest. Co. Eep. 71. 
 
 15 People V. New York Common 
 Pleas, 13 Wend. (N. Y.) 649, 28 Am. 
 Dec. 495. 
 
CHAPTEE XXVI. 
 
 ENFORCEMENT OF LIENS. 
 
 In General, 
 
 653. Eight to Enforce Lien. 
 
 654. Courts Wherein Enforcement May Be Had. 
 
 655. Law Which Governs. 
 
 By and Against Whom Enforcement May Be Effected. 
 
 656. Who May Enforce Lien. 
 
 657. Against Whom Enforcement May Be Had. 
 
 Vacation of Proceedings to Effect Settlement, 
 
 658. Vacation of Settlement Proceedings Generally. 
 
 659. Seeking Additional Relief in Vacation Proceedings. 
 
 660. When Proceedings Will Be Vacated. 
 
 Summary Determination and Enforcement of Lien in Original Action, 
 
 661. Generally. 
 
 662. Petition for Determination and Enforcement. 
 
 663. Against Whom Petition May Be Presented. 
 
 664. Necessary Parties. 
 
 665. Determination of Amount Due. 
 
 666. Order and Appeal Therefrom. 
 
 Other Summary Enforcement. 
 
 667. Generally. 
 
 668. Issuing Execution. 
 
 669. Order on Sheriff or Assignee of Judgment to Pay over Fund. 
 
 670. Intervention in Proceedings for Revival of Judgment. 
 
 671. Enforcement by Appeal and in Appellate Court. 
 
 672. Taking Judgment by Default. 
 
 Prosecuting Original Suit to Final Judgment. 
 
 673. Right to Prosecute Original Suit. 
 
 674. Procedure. 
 
 675. Permission to Prosecute Denied. 
 
 1058 
 
§§ 653, 654} ENFORCEMENT OF LIENS. 1059 
 
 Enforcement by Independent Action. 
 
 § 676. By Action at Law. 
 
 677. By Suit in Equity. 
 
 678. Parties. 
 
 679. Pleading and Proof. 
 
 680. Defenses. 
 
 681. Recovery and Enforcement Thereof. 
 
 682. Enforcement against Judgment. 
 
 683. Enforcement against Provisional Remedies and Sureties. 
 
 Enforcement of Betaining Lien. 
 
 684. Generally. 
 
 In General. 
 
 § 653. Right to Enforce Lien. — As a general rule, statutes 
 which create attorneys' liens also provide for their enforcement; 
 and in those states where lien rights exist only by virtue of statu- 
 tory authority, a like authority must exist for their enforcement.* 
 In many jurisdictions, however, it is recognized that attorneys' 
 charging liens may accrue, and may also be enforced, irrespective 
 of such authority ; " indeed, to declare an attorney entitled to a 
 lien, and, at the same time, to declare that he cannot enforce it, 
 would be bestowing upon him the shadow and withholding the 
 substance.' But it may be possible that an attorney will be called 
 upon to bear at least some of the expense connected with the en- 
 forcement of his lien ; thus, it has been held that an attorney must 
 contribute ratably to the expense necessary for the enforcement 
 of a judgment upon which he has a lien, and take his percentage 
 out of the net amount realized.* 
 
 § 654. Courts Wherein Enforcement May Be Had. — 
 
 As a general rule, a lien must be enforced in the court wherein 
 
 iPlummer v. Great Northern R. 3 Fillmore v. Wells, 10 Colo. 228, 
 
 Co., 60 Wash. 214, 110 Pac. 989. 31 15 Pac. 343, 3 Am. St. Rep. 567. 
 L.R.A.(N.S.) 1215. 1 Fisher v. Mylius, 62 W. Va. 19, 
 
 2 See supra, §§ 578-582, as to 57 S. E. 276. 
 charging liens generally. And see 
 also Mathot v. Triebel, 98 App. Div. 
 328, 90 N. Y. S. 903. 
 
1060 
 
 ENFORCEMENT OF LIENS. 
 
 [§ 654 
 
 the services for which the lien accrued were rendered,* even though 
 some of the parties may reside in another jurisdiction.* This rule 
 also applies to federal courts ; ' but the removal of an action from 
 a state to the federal court does not prevent the state court from 
 enforcing an attorney's lien which attached upon the commence- 
 ment of the action.' So, in some jurisdictions an attorney's lien 
 may be recognized and enforced in a surrogate's court,^ and this 
 has been held to be true even though the services for which the lien 
 accrued were rendered in another court. ^'' Appellate courts also 
 afford relief, in some states, in the enforcement of attorney's 
 liens.^^ But in some jurisdictions wherein an attorney's lien is 
 allowed for services rendered in certain inferior courts, it has 
 been held that such lien can only be enforced in a court of record.*^ 
 So, it has been held that a lien accruing for services rendered 
 to certain members of an Indian tribe, in proceedings before the 
 
 5 England. — Read v. Dupper, 6 T. 
 E. 361. 
 
 United States. — Central E. & B. 
 Co. V. Pettus, 113 U. S. 116, 5 S. 
 Ct. 387, 28 U. S. (L. ed.) 915; Tut- 
 tle V. Claflin, 86 Fed. 964. 
 
 Arkansas. — Gist v. Hanly, 33 Ark. 
 233. 
 
 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pae. 343, 3 Am. St. Eep. 
 567. 
 
 Michigan. — Wipfler v. Warren, 163 
 Mich. 189, 128 N. W. 178, 17 Detroit 
 Leg. N. 905. 
 
 'New York. — Brown v. Comstoek, 10 
 Barb. 67, 3 Code Eep. 142; Adams v. 
 Fox. 40 Barb. 442; In re King, 168 
 N. Y. 53, 60 N. E. 1054, modifying 61 
 App. Div. 152, 70 N. Y. S. 356. 
 
 6 In re King, 168 N. Y. 53, 60 N. 
 E. 1054, modifying 61 App. Div. 152, 
 70 N. Y. S. 356; Oishei v. Pennsyl- 
 vania E. Co., 117 App. Div. 110, 117, 
 118, 119, 102 N. Y. S. 368, 373, 374. 
 
 V IngersoU v. Coram, 211 U. S. 335, 
 29 S. Ct. 92, 53 U. S. (L. ed.) 208. 
 
 See also § 8 of the Act of Mar. 3, 
 1875 (4 Fed. St. Ann. p. 380). 
 
 8 Oishei v. Pennsylvania E. Co., 117 
 App. Div. 110, 117, 118, 119, 102 N. 
 Y. S. 368, 373, 374. 
 
 9 In re Eowland, 55 App. Div. 66, 
 8 N. Y. Ann. Cas. 397, 66 N. Y. S. 
 1121, affirmed 166 N. Y. 641, 60 N. 
 E. 1120; In re Regan, 29 Misc. 527, 
 7 N. Y. Ann. Cas. 165, 61 N. Y. S. 
 1074. See also Eobinson's Estate, 59 
 Misc. 323, 112 N. Y. S. 280. Compare 
 In re Pieris, 82 App. Div. 466, 81 
 N. Y. S. 927, affirmed 176 N. Y. 566, 
 68 N. E. 1123. 
 
 10 Close V. Shute, 4 Dem. (N. Y.) 
 546. Compare In re Pieris, 82 App. 
 Div. 466, 81 N. Y. S. 927. 
 
 "See infra, § 671. 
 
 18 Thus, a lien accrues for serv- 
 ices rendered in a municipal court 
 of the city of New York, but it 
 seems that it must be enforced in 
 the supreme court. People v. Fitz- 
 patrick, 35 Misc. 456, 71 N. Y. S. 191; 
 Tynan v. Mart, 53 Misc. 49, 103 N. 
 Y. S. 1033. 
 
§§ 655, 656] ENFORCEMENT OE LIENS. 1061 
 
 secretary of the interior, cannot be enforced in a mandamus pro- 
 ceeding to compel the secretary to restore the names of such Indians 
 to the tribal roll." A statute allowing enforcement in any court 
 of competent jurisdiction is valid.** 
 
 § 655. Law Which Governs. — The lien of an attorney will 
 be enforced according to the law of the state where the lien at- 
 tached, and not according to the law of a state wherein the judg- 
 ment is sought to be collected.*^ And where services were ren- 
 dered to a foreign trustee, who sought to remove funds from the 
 control of the courts in one state and bring them to another, it 
 was held that the courts of the state wherein the services were 
 rendered, and the funds located, had power to determine the 
 amount for which an attorney's lien should be established.*' 
 
 By and Against Whom Enforcement May Be Effected. 
 
 § 656. Who May Enforce Lien. — An attorney's lien may 
 be enforced by himself," or by his assignee.*' So, an attorney's 
 lien, declared in favor of a law partnership, may be enforced by 
 one of the firm who became the owner thereof by virtue of an 
 
 iSKappler v. Sumpter, 33 App. not be deprived of their remedies 
 
 Cas. (D. C.) 404, wherein it was in the courts having jurisdiction in 
 
 said that all contracts with Indians the premises." 
 
 are subject to the supervision and l* Burns v. Illinois Cent. R. Co., 
 
 allowance of the secretary of the 258 111. 302, 101 N. E. 551. 
 
 interior. "All of the attorneys will 16 Citizens' Nat. Bank v. Culver, 
 
 probably have to go before him for 54 N. H. 327, 20 Am. Rep. 134. 
 
 a iinal approval and settlement of 16 In re King, 168 N. Y. 53, CO N. 
 
 their contracts and claims for fees. E. 1054, modifying 61 App. Div. 152, 
 
 And there is nothing in the orders 70 N. Y. S. 356. 
 
 complained of that would preclude in- "In re Wilson, 12 Fed. 235, 26 
 
 quiry by him into the several con- Alb. L. J. 271; Adams v. Fox, 40 
 
 tracts of the attorneys, and the al- Barb. (N. Y.) 442; Kipp v. Rapp, 
 
 lowance of the same as may appear 2 How. Pr. N. S. (N. Y. ) IGO, 7 
 
 fair and just, to the full extent of Civ. Proc. 385. 
 
 the discretion committed to him by 18 Fisher v. Mylius, 62 W. Va. 19, 
 
 Congress in such matters. But, if the 57 S. E. 276. 
 
 secretary have no such discretionary As to the assignability of a lien, see 
 
 power under the law, the parties will supra, § 611. 
 
1062 ENFOECEMENT OF LIENS. [§ 657 
 
 arrangement with the other partner.^' But where a law firm has 
 been dissolved under an agreement whereby its business was to 
 be wound up by one of its members, the other member has no 
 interest in such business which will warrant him in asserting an 
 attorney's lien with respect thereto.*" Proceedings for the en- 
 forcement of an attorney's lien cannot be maintained by the parties 
 to the litigation.^ Nor can one who has not been admitted to prac- 
 tice as an attorney be joined with a licensed practitioner in an 
 action for the enforcement of an attorney's lien for services per- 
 formed by both of them f but it seems that an attorney duly ad- 
 mitted in another state may be a party to the enforcement of an 
 attorney's lien in a state wherein he has rendered professional 
 services, although he has not been admitted therein.* 
 
 § 657. Against Whom Enforcement May Be Had. — 
 
 An attorney's charging lien may be enforced against the client,* 
 or his assignee.^ So, the lien may be enforced against an associate 
 attorney,* or against the defendant,'' and in some instances en- 
 forcement may be had against the defendant's sureties ; ' and 
 where the defendant and an assignee of the plaintiff are both 
 liable, the attorney may elect as to whether he shall pursue one or 
 both of them.' In some jurisdictions an attorney's lien may be 
 
 18 Vinson v. Cantrell, (Tenn.) 56 Gardner-Himes Co., 123 App. Div. 
 
 S. W. 1034. 404, 107 N. Y. S. 1063; Hcartt ». 
 
 20 Schiefer v. Freygong, 141 App. Chipman, 2 Aikens (Vt.) 162. 
 
 Div. 236, 125 N. Y. S. 1037. And see Assignment by client as affecting 
 
 supra, § 472. lien, see supra, §§ 648, 649. 
 
 1 Avery v. Avery, 5 Misc. 75, 23 6 Smitli v. Goode, 29 Ga. 185. See 
 Civ. Proc. 204, 24 N. Y. S. 737. See also Elliott v. Leopard Min. Co., 52 
 also Jackson v. American Cigar Box Cal. 355. 
 
 Co., 141 App. Div. 195, 126 N. Y. S. 'Procter Coal Co. v. Tye, 123 Ky. 
 
 58. 381, 96 S. W. 512; Oishei v. Metro- 
 
 2 Hittson V. Browne, 3 Colo. 304. politan St. K. Co., 110 App. Div. 709, 
 8 Taylor v. Badoux, (Tenn.) 58 S. 35 Civ. Proc. 240, 97 N. Y. S. 447; 
 
 W. 919. IngersoU v. Coal Creek Coal Co., 117 
 
 4 Davidson v. La Plata County, 26 Tenn. 263, 10 Ann. Oas. 829, 98 S. 
 
 Colo. 549, 59 Pae. 46. See infra, W. 178, 9 L.R.A.(]Sr.S.) 282. 
 
 § 663. 8 See infra, § 678. 
 
 * Sexton V. Pike, 13 Ark. 193 ; 9 Davidson v. La Plata County, 26 
 
 Davidson v. La Plata County, 26 Colo. 549, 59 Pac. 46. 
 
 Colo. 549, 59 Pac. 46; Ross v. Bayer- 
 
§ 658] ENFORCEMENT OF LIENS. 1063 
 
 enforced against any one into whose hands the proceeds of liti- 
 gation, in connection with which the lien accrued, may come.*" 
 In order that enforcement may be effective, however, it must be 
 shown that a lien has actually accrued to the attorney, and that a 
 sum of money is due him thereon '^ for professional services which 
 he was authorized to render ; ^ and in some jurisdictions it is 
 essential, in order that the lien may be enforced against the de- 
 fendant, that the attorney should be unable to enforce his claim 
 against his client.'* 
 
 Vacation of Proceedings to Effect Settlement. 
 
 § 658. Vacation of Settlement Proceedings Generally. — 
 
 In many jurisdictions an attorney may move to vacate such action 
 as has been taken by his client, or by the adverse party, or both, 
 for the purpose of effecting a disposition of the litigation wherein 
 the attorney has been engaged and has acquired a lien, in so far 
 as the same may affect his lien rights. This procedure is author- 
 ized by statute in some instances ; but even in the absence of statute, 
 the court undoubtedly has inherent power to protect its officers in 
 this respect.'* Thus, an attorney may move to set aside the satis- 
 faction of a judgment,'* or to vacate the cancellation of an under- 
 
 lOMo. Rev. St. (1909) § 964; New Neiv ToWc— Spors V. Schultheia, 
 York Judiciary Law, § 475; Utah 55 Hun 603 mem., 8 N. Y. S. 175; 
 
 Comp. Laws, § 135. Roberts v. Union EL R. Co., 84 Hun 
 
 "See infra, § 671. 437, 32 N. Y. S. 387; Baxter v. Con- 
 
 12 See infra, § 680. nor, 119 App. Div. 450, 104 N. Y. S. 
 
 13 See infra, § 680. S27 ; Knickerbocker Inv. Co. v. Voor- 
 
 14 Potter V. Ajax Min. Co., 19 Utah hees, 128 App. Div. 639, 132 Jf. Y. 
 421, 57 Pac. 270. S. 842; Guliano v. Whitenack, 9 
 
 li United States. — Patrick «. Leach, Misc. 562, 24 Civ. Proe. 55, 1 N". Y. 
 
 17 Fed. 476, 3 McCrary 555. Ann. Cas. 75, 30 N. Y. S. 415; Mit- 
 
 Minnesota. — Northrup v. Hayward, chell v. Piqua Club Asa'n, 15 Misc. 
 
 102 Minn. 307, 12 Ann. Cas. 341, 113 366, 25 Civ. Proc. 139, 37 N. Y. S. 
 
 N. W. 701. 406; Bollar v. Schoenwirt, 30 Misc. 
 
 Missouri.— Young v. Renshaw, 102 224, 63 N. Y. S. 311; Whittafeer v. 
 
 Mo. App. 173, 76 S. W. 701 ; Stepliens New York & Harlem R. Co., 54 Super. 
 
 V. Metropolitan St. R. Co., 157 Mo. Ct. 8, 18 Abb. N. Cas. 11, 11 Civ. 
 
 App. 656, 138 S. W. 904; Smoot v. Proc. 189, 3 N. Y. St. Rep. 537; Com- 
 
 Shy, 159 Mo. App. 126, 139 S. W. mercial Tel. Co. v. Smith, 19 Civ. 
 
 239. Proc. 32, 10 N. Y. S. 433. 
 
1064 ENFOECEMENT OF LIENS. [§ 659 
 
 taking against which his lien might be enforced ; '* so, he may 
 move to set aside a settlement,*'' or a dismissal of the litigation.*' 
 A proceeding of this character, however, can be instituted only 
 by the lien claimant; *' and it seems that the client is not a neces- 
 sary party.*' 
 
 § 659. Seeking Additional Relief in Vacation Proceedings. 
 
 — It is evident that the mere vacation of proceedings for the 
 purpose of effecting a settlement will not, of itself, afford relief 
 in all instances, and, therefore, it is usual to accompany the appli- 
 cation for vacation with a request that the cause be restored,* and 
 the attorney permitted to continue the litigation to final judg- 
 ment for the purpose of establishing his lien.* And in some juris- 
 dictions the amount due an attorney may be determined, and his 
 lien therefor enforced, in the vacation, proceedings,' or the attor- 
 ney may be permitted to issue an execution to the extent of his 
 lien.* The court will not, however, undertake, upon affidavits, to 
 try either a charge made by the plaintiff's attorneys of collusion 
 between the plaintiff and the defendant in the settlement, or the 
 charge made by the defendant's attorney of champertous conduct 
 
 XJtah. — Potter v. Ajax Min. Co., 19 130 N. W. 1047; Jackson v. Stearns, 
 Utah 421, 57 Pae. 270. 48 Ore. 25, 84 Pac. 798, 5 L.R.A. 
 
 16 Knickerbocker Inv. Co. v. Voor- (N.S.) 390. 
 
 hees, 128 App. Div. 639, 112 N. Y. S. W Murray v. Jibson, 22 Hun (N. 
 
 842. And see infra, § 660. Y.) 386. And see supra, § 656. 
 
 17 Minnesota. — Desaman v. Butler, 20 Aspinwall v. Sabin, 22 Neb. 73, 
 114 Minn. 362, 131 N. W. 463. 34 N. W. 72, 3 Am. St. Eep. 258. 
 
 Missouri. — ^Wait v. Atchison, T. & And see also infra, § 664. 
 
 S. F. E. Co., 204 Mo. 491, 103 S. W. 1 Piatt v. Jerome, 19 How. 384, 15 
 
 60. U. S. (L. ed.) 623; Desaman v. But- 
 
 2fe6ra«7ca.— Aspinwall v. Sabin, 22 ler, 114 Minn. 362, 131 N. W. 463. 
 
 Neb. 73, 34 N. W. 72, 3 Am. St. Rep. 8 See infra, § 673. 
 
 258; Jones v. Duff Grain Co., 69 Neb. 8 Stephens v. Metropolitan St. E. 
 
 91, 95 N. W. 1. Co., 157 Mo. App. 656, 138 S. W. 904; 
 
 New York. — Kuehn v. Syracuse Smoot v. Shy, 159 Mo. App. 120, 139 
 
 Eapid Transit E. Co., 183 N. Y. S. W. 2^9. See also Guliano v. 
 
 456, 76 N. E. 589, reversing 104 App. Whitenack, 9 Misc. 562, 24 Civ. Proc. 
 
 Div. 580, 93 N. Y. S. 883. 55, 1 N. Y. Ann. Cas. 75, 30 N. Y. 
 
 Wisconsin. — Howard v. Osceola, 22 S. 415. 
 
 Wis. 453. 4 Smoot v. Shy, 159 Mo. App. 126, 
 
 18 Zentmire v. Brailey, 89 Neb. 158, 139 S. W. 239. See infra, § 668. 
 
§ 660] ENFORCEMENT OF LIENS. 1065 
 
 on the part of the attorney securing the contract of employment 
 from the plaintiff.* 
 
 § 660. When Proceedings Will Be Vacated. — As a general 
 rule, the law encourages the settlement of litigation, and, there- 
 fore, the fair and honest disposition of a cause by the client will 
 rarely he interfered with.* The circumstances must be such as 
 will warrant interference by the court in order to enable the at- 
 torney to recover his compensation,'' and the attorney must act 
 promptly ; laches may be fatal.' The mere fact that the client has 
 been overreached is not sufficient ground for setting aside a set- 
 tlement made by him with the adverse party.' But it is quite 
 generally recognized that proceedings by which a settlement has 
 been effected, will be vacated where it appears that such settle- 
 ment was entered into with the intention of defrauding the at- 
 torney in the matter of his compensation,^" or where the client is 
 an irresponsible person.^' In some instances it would seem that 
 the fact of a settlement having been made with knowledge, 
 or means of laiowledge, of the existence of an attorney's lien, 
 will warrant the court in vacating the proceedings ; ^^ and it has 
 
 6 Kern v. Chicago, M. & P. S. R. lo Jones v. Duff Grain Co., 69 Neb. 
 
 Co., 201 Fed. 404. 91, 95 N. W. 1; Whittaker v. New 
 
 6 See supra, §§ 640-646. See also York & Harlem R. Co., 18 Abb. N. 
 
 Murray v. Jibson, 22 Hun (N. Y.) Cas. 11, 11 Civ. Proc. 189, 54 Super. 
 
 386; Zimmer v. Metropolitan St. R. Ct. 8, 3 N. Y. St. Rep. 537; Jackson 
 
 Co., 32 Misc. 262, 65 N. Y. S. 977 ; v. Stearns, 48 Ore. 25, 84 Pac. 798, 5 
 
 Jackson v. Stearns, 48 Ore. 25, 84 L.R.A. (N.S.) 390 ; Howard u. Osceola, 
 
 Pac. 798, 5 L.R.A.(N.S.) 390. 22 Wis. 453. And see also supra, 
 
 'Dahlstrom v. Featherstone, 18 § 642. 
 
 Idaho 179, 110 Pac. 243; Poole v. "Baxter v. Connor, 119 App. Div. 
 
 Belcha, 131 N. Y. 200, 30 N. B. 53; 450, 104 N. Y. S. 327; Mitchell v. 
 
 Corbitt V. Watson, 88 App. Div. 467, Piqua Club Ass'n, 15 Misc. 366, 25 Civ. 
 
 85 N. Y. S. 125; Courtney v. Mc- Proc. 139, 37 N. Y. S. 406; Bollar v. 
 
 Gavock, 23 Wis. 619. Schoenwirt, 30 Misc. 224, 63 N. Y. S. 
 
 'Richardson v. Brooklyn City & 311. 
 
 N. R. Co., 7 Hun (N. Y.) 69; Neill la Desaman u. Butler, 114 Minn. 362, 
 
 V. Van Wagenen, 54 Super. Ct. (N. 131N. W. 463; Stephens u. Metropoli- 
 
 Y.) 477. tan St. R. Co., 157 Mo. App. 656, 138 
 
 9 Stephens v. Metropolitan St. R. S. W. 904. 
 Co., 157 Mo. App. 656, 138 S. W. 
 904. 
 
1066 
 
 ENFOECEMENT OF LIENS. 
 
 [§ 661 
 
 been distinctly held that the attorney need not show any actual 
 fraud." 
 
 Summary Determinaiion and Enforcement of Lien in Original 
 
 Action. 
 
 § 661. Generally. — In several jurisdictions an attorney may 
 have his charging lien determined and enforced in the original 
 action either by intervening therein as a party, or, without be- 
 coming a party, by presenting a petition to the court and praying 
 for the determination and enforcement of his lien; this practice 
 is usually authorized by statutes " which also provide that the lien 
 may be determined and enforced by the court.** Thus, under the 
 Georgia statute it has been held that it is the duty of the court 
 to protect and enforce an attorney's lien, on application, where 
 the circumstances warrant such action.*^ And under the Ifew 
 York statute " the court is obliged to determine and enforce an 
 attorney's charging lien on the presentation of a petition setting 
 forth sufficient grounds therefor.** But, in the absence of fraud, 
 
 13 Desaman v. Butler, 114 Minn. 
 362, 131 N. W. 463; Whittaker v. 
 New York & Harlem R. Co., 18 Abb. 
 N. Cas. 11, 11 Civ. Proc. 189, 54 
 Super. Ct. 8, 3 N. Y. St. Rep. 537. 
 
 14 Georgia. — Merchants' Nat. Bank 
 V. Armstrong, 107 Ga. 479, 33 S. E. 
 473. 
 
 Kentucky. — Proctor Coal Co. v. Tye 
 & Denham, 123 Ky. 381, 96 S. W. 512, 
 29 Ky. L. Rep. 804 ; Martin v. Smith, 
 110 S. W. 413; Johnson v. Breckin- 
 ridge, 4 Ky. L. Rep. 994 (abstract). 
 
 Minnesota. — Weicher i>. Cargill, 86 
 Minn. 271, 90 N. W. 402. 
 
 Nebraska. — Jones v. Duff Grain Co., 
 69 Neb. 91, 95 N. W. 1; Lewis v. 
 Omaha St. R. Co., 114 N. W. 281. 
 
 New York. — Brown v. New York, 11 
 Hun 21; Corbit v. Watson, 88 App. 
 Div. 467, 85 N. Y. S. 125; Sullivan v. 
 McCann, 113 App. Div. 61, 37 Civ. 
 Proc. 113, 98 N. Y. S. 947; In re Ed- 
 
 ward Ney Co., 114 App. Div. 467, 99 
 N. Y. S. 982. 
 
 Texas. — Thomas v. Morrison, 46 S. 
 W. 46; Marschall v. Smith, 132 S. W. 
 812. 
 
 iSRadley v. Gaylor, 98 App Div. 
 158, 90 N. Y. S. 758 ; Kuehn v. Syra- 
 cuse Rapid Transit R. Co., 104 App. 
 Div. 580, 93 N. Y. S. 883, affirmed 186 
 N. Y. 567, 79 N. E. 1109 ; In re Kauf- 
 man, 113 N. Y. S. 525; Gulf, C. & S. 
 F. R. Co. V. Eldredge, 35 Tex. Civ. 
 App. 467, 80 S. W. 556. 
 
 16 Merchants' Nat. Bank <o. Arm- 
 strong, 107 Ga. 479, 33 S. E. 473. 
 
 IT N. Y. Judiciary Law, § 475. 
 
 18 In re King, 168 N. Y. 53, 60 N. E. 
 1054, modifying 61 App. Div. J 52, 70 
 N. Y. S. 356; Corbit v. Watson, 88 
 App. Div. 467, 85 N. Y. S. 125; Sul- 
 livan V. McCann, 113 App. Div. 61, 37 
 Civ. Proc. 113, 98 N. Y. S. 947. 
 
§ 662] ENFOECEMBNT OF LIENS. 1067 
 
 there is no room for determining the amount due an attorney 
 where his compensation is fixed by a contract with his client, and 
 judgment has been entered in the cause.^' In Virginia, liowever, 
 it has been held that where an attorney has a lien for money ad- 
 vanced his client to pay for land purchased in a pending suit, the 
 better practice is not to enforce the lien in that suit, and thereby 
 keep other parties in court who have no interest in that question, 
 but to make a proper decree for the protection of the attorney, 
 giving him leave to enforce it in an independent suit for that 
 purpose.*" 
 
 § 662. Petition for Determination and Enforcement. — 
 
 The petition of an attorney for the determination and enforce- 
 ment of his lien, as stated in the preceding section, should show 
 his employment by the client, the performance of the diities under- 
 taken by him or some sufficient excuse for their nonperformance, 
 the value of his services, the accrual of a lien therefor, and the re- 
 fusal or neglect of the client to pay the same ; ^ and in some juris- 
 dictions the petition should show that the client is financially ir- 
 responsible.^ So, the petition should show notice or filing of the 
 lien where those elements are required by statute.^ It is not 
 necessary to allege bad faith.* An attorney's affidavit in answer 
 to an order to show cause why the action should not be dismissed 
 on a stipulation entered into between the parties, in which the 
 attorney makes no objection to the dismissal provided an allow- 
 ance is made for his fees, which affidavit was not served on his 
 client, cannot be treated as a petition for the determination and 
 enforcement of the attorney's lien.® 
 
 19 Serwer v. Sarasohn, 91 App. Div. 2 Smith v. Acker Process Co., 102 
 538, 86 N. Y. S. 838. And see also, App. Div. 170, 92 N. Y. S. 351. And 
 supra, § 439. see also, infra, § 680. 
 
 20 Fitzgerald's Ex'x v. Irby, 99 Va. 3 See, supra, §§ 600-605. 
 
 81, 37 S. E. 777, 3 Va. Sup. Ct. Rep. 1. 4 Proctor Coal Co. v. Tye, 123 Ky. 
 
 1 See Merchants' Nat. Bank v. Arm- 381, 96 S. W. 512, 29 Ky. L. Rep. 804. 
 strong, 107 Ga. 479, 33 S. E. 473 ; 5 Sullivan v. MeCann, 113 App. Div. 
 
 Smith V. Acker Process Co., 102 App. 61, 37 Civ. Proc. 113, 98 N. Y. S. 947. 
 Div. 170, 92 N. Y. S. 351; Ferris v. 
 Lawrene, 138 App. Div. 541, 123 N. 
 Y. S. 209. 
 
1068 ENFORCEMENT OF LIENS. [§§ 663, 664 
 
 § 663. Against Whom Petition May Be Presented. — 
 
 In Ifew York it has been held that the provision of the statiite 
 for the determination and enforcement of attorneys' liens is in- 
 tended to be effective only as between attorney and client, and can- 
 not be used for enforcing the claim of the plaintiff's attorney for 
 his compensation as against the defendant, who has settled with 
 the plaintiff," even though such defendant agreed to pay any lien 
 which plaintiff's attorney might establish on the cause of action.' 
 In other jurisdictions, however, the procedure under discussion 
 is available for the determination and enforcement of attorneys' 
 liens as against the defendant, as well as against the client; in- 
 deed, in many states the client is not a necessary party in pro- 
 ceedings of this character.' The client may be proceeded against 
 by petition, even though he disputes the amount due the attorney.' 
 
 § 664. Necessary Parties. — It has been quite generally held 
 that the client is not a necessary party to a petition for the de- 
 termination and enforcement of the attorney's lien.*" So, where a 
 suit against testamentary trustees, for a construction of the will 
 and an accounting, was discontinued by agreement, but no moneys 
 were paid or agreed to be paid without the knowledge or consent 
 of the plaintiff's attorney, it was held that the trustees were not 
 proper parties to a proceeding for the determination of the at- 
 torney's lien.^^ And in a suit to establish an attorney's lien against 
 a judgment for alimony, which had been paid into court, it was 
 held that the judgment debtor was not a necessary party.'^^ In 
 
 6 Eoehfort v. Metropolitan St. R. 9 Commercial Telegram Co. v. 
 Co., 50 App. Div. 261, 30 Civ. Proc. Smith, 19 Civ. Proc. 32, 10 N. Y. S. 
 285, 63 N. Y. S. 1036; In re Winkler, 433. 
 
 154 App. Div. 532, 139 N. Y. S. 755; 10 Kansas Pac. K. Co. v. Thacher, 17 
 
 Zimmer v. Metropolitan St. R. Co., 32 Kan. 92 ; Proctor Coal Co. v. Tye, 123 
 
 Misc. 262, 65 N. Y. S. 977; Dumo- Ky. 381, 96 S. W. 512, 29 Ky. L. Rep. 
 
 with V. Marks, 84 N. Y. S. 453. See 804; Aspinwall v. Sabin, 22 Neb. 73, 
 
 also In re Lexington Ave., 30 App. Div. 34 N. W. 72, 3 Am. St. Rep. 258. 
 
 602, 27 Civ. Proc. 245, 52 N. Y. S. 203, " Sullivan v. McCann, 115 App. 
 
 affirmed, 157 N. Y. 678, 51 N. E. 1092. Div. 146, 100 N. Y. S. 739. 
 
 7 Pilkington v. Brooklyn Heights R. 12 Hubbard v. EUithorpe, 135 la. 
 Co., 49 App. Div. 22, 30 Civ. Proc. 276, 259, 112 N. W. 796, 124 Am. St. Rep. 
 63 N. Y. S. 211. 271. 
 
 8 See the following section. 
 
§ 665] ENFORCEMENT OF LIENS. 1069 
 
 If ew York, however, it has been held that the client, being entitled 
 to the fund subject to the lien of the attorney, has a right to be 
 heard as to the existence and enforcement of the lien, and is, there- 
 fore, a necessary party in such a proceeding, and he may be served 
 by substituted process if he has departed f roin the state ; ^' but in 
 that jurisdiction the enforcement of an attorney's lien by petition 
 to the court is confined to enforcement against the client alone.'* 
 
 § 665. Determination of Amount Due. — In determining 
 the amount due an attorney the court may order a reference, and 
 this is the usual practice where the facts and circumstances pre- 
 sented by the moving papers indicate that a thorough hearing 
 should be had.'° This practice is not only sanctioned by long 
 usage and repeated approval, but it is peculiarly adapted to the 
 ascertainment of the truth in cases where reckless affidavit making, 
 or discreet silence upon essential particulars, may give the whole 
 controversy a false atmosphere.'® But the referee can only take 
 evidence and report thereon. The court must determine the 
 amount due.'' And where a reference is ordered to determine 
 the amount due under an agreement, the referee cannot ignore 
 such agreement and find for the attorney on a quantum meruit}^ 
 In some jurisdictions disputes of this character may be submitted 
 to a jury trial.'' There are many cases, however, in which a refer- 
 ence or trial by jury is neither necessary nor desirable, and this 
 is particularly true where the facts are not disputed, or where the 
 
 13 Oishei v. Pennsylvania E. Co!, 117 New York. — Thomasson v. Latour- 
 
 App. Div. 110, 119, 102 N. Y. S. 368, ette, 63 App. Div. 408, 71 N. Y. S. 
 
 374, affirmed, 191 N. Y. 544, 85 N. E. 559 ; Cohn v. Polstein, 41 Misc. 431, 
 
 1113. See also Oishei v. Pennsylvania 84 N. Y. S. 1072. 
 
 E. Co., 101 App. Div. 473, 91 N. Y. S. Pennsylvania. — See McKelvy's Ap- 
 
 1034; In re Winkler, 146 App. Div. peal, 108 Pa. St. 615. 
 
 927, 131 N. Y. S. 124. 16 In re Speranza, 186 N. Y. 280, 78 
 
 "See the preceding section. N. E. 1070, reversing 114 App. Div. 
 
 IS Colorado.— mUzaoxe v. Wells, 10 913, 100 N. Y. S. 1144. 
 
 Colo. 228, 15 Pac. 343, 3 Am. St. Eep. " In re Edward Ney Co., 114 App. 
 
 567. Div. 467, 99 N. Y. S. 982. 
 
 Minnesota. — Weicher v. Cargill, 86 18 In re Department of Public 
 
 Minn. 271, 90 N. W. 402. Worics, 167 N. Y. 501, 60 N. E. 781. 
 
 New Jersey. — See Barnes v. Taylor, 19 Weicher v. Cargill, 86 Minn. 271, 
 
 30 IT. J. Eq. 467. 90 N. W. 402. 
 
1070 ENFORCEMENT OF LIENS. [§§ 666, 667 
 
 amount due is to be determiued from the construction of an un- 
 ambiguous writing.*" 
 
 § 666. Order and Appeal Therefrom. — Under the New 
 York statute it has been held that a proceeding for the determina- 
 tion and enforcement of an attorney's lien is a special proceeding, 
 and not an action, and a judgment in favor of the attorney is not 
 authorized; but the determination should be in the form of an 
 order adjudging that the attorney has a lien for a certain sum. 
 An appeal from the order entered therein is not an appeal from 
 a judgment rendered after the trial of an issue of fact in an 
 action; but the appellate division will review the determination 
 of the special term, both upon the facts and the law, and grant 
 to either party the relief to which he is entitled.* 
 
 Other Summary Enforcement. 
 
 § 667. Generally. — Unless precluded by statutory regulation, 
 courts may exercise summary jurisdiction in the enforcement of 
 attorneys' liens, at least in some cases. Thus, it has been held 
 that the court retains jurisdiction over a judgment until it has 
 been fully executed, and may hear any motion which affects it; 
 and if, during that time, the attorney desires to have his lien 
 established, he may apply to the court for that purpose, the parties 
 to the action being served with notice of the hearing.* So, the 
 court may require the payment of an attorney's lien as a condi- 
 tion of the discontinuance or dismissal of the cause,' or the entry 
 of a judgment for a stipulated amount where the parties have 
 compromised ; * or the lien may be merely declared summarily, 
 and ordered to be enforced in an independent action.^ It has also 
 
 20 In re Kaufman, 113 N. Y. S. 525 ; 167 N. Y. 505, 60 N. E. 768, affirming 
 
 Illinois Cent. E. Co. v. Wells, 104 54 App. Div. 175, 8 N. Y. Ann. Cas. 
 
 Tenn. 706, 59 S. W. 1041. 231, 66 N. Y. S. 361. See also supra, 
 
 1 Sullivan v. McCann, 124 App. Div. § 646. 
 
 126, 108 N. Y. S. 909. 4 Illinois Cent. R. Co. v. Wells, 104 
 
 zPer Stewart, J., concurring in Tenn. 706, 59 S. W. 1041. And see 
 
 Dahlstrom v. Featherstone, 18 Idaho also supra, §§ 640-645. 
 
 179, 110 Pac. 243. 6 Fitzgerald's Ex'x v. Irby, 99 Va. 
 
 8 National Exhibition Co. v. Crane, 81, 37 S. E. 777, 3 Va. Sup. Ct. Kep. 1. 
 
§ 668] ENFORCEMENT OF LIENS. 1071 
 
 been held that the court may summarily enter an order to prevent 
 the distribution of assets upon which an attorney's lien is claimed.* 
 So too an attorney's lien, set up in summary proceedings to compel 
 him to pay over money collected for his client, "will be adjusted 
 in that proceeding, and judgment rendered requiring him to pay 
 over any balance.'' Nor will a defendant who has been arrested in 
 a civil action be discharged until the fees of the plaintiff's counsel 
 have been paid, even though the plaintiff has released his cause 
 of action against the defendant, and consented to his discharge.' 
 Even after a judgment has been satisfied, it has been held that 
 it may be reinstated where it appears that such satisfaction is in 
 fraud of the attorney's rights.' But a judgment which has been 
 affirmed on appeal will not thereafter be amended so as to direct 
 the payment of costs due an attorney; in such case the attorney 
 must proceed in the usual way for the determination and enforce- 
 ment of his lien." In all instances of summary procedure it is 
 essential that the client should have notice and an opportunity to 
 be heard.^^ In Georgia the lien is foreclosed by rule in the same 
 manner as mortgages on land.'* 
 
 § 668. Issuing Execution. — In several jurisdictions it is 
 allowable to issue execution for the enforcement of an attorney's 
 lien which has accrued for services rendered in procuring a judg- 
 ment which has been settled by the parties in fraud of the attor- 
 ney's rights.** And where an attorney sued to subject property, 
 
 6 Merchants' Nat. Bank v. Arm- Featherstone, 18 Idaho 179, 110 Pac. 
 
 strong, 107 Ga. 479, 33 S. E. 473. 243. 
 
 ' Wolfe V. Mack, 81 Misc. 185, 142 12 The venue of such proceeding is 
 
 N. Y. S. 433. the county wherein the land to be 
 
 8 Crouch V. Hoyt, 24 Civ. Proc. 60, 1 reached lies. It is not such a civil case 
 N. Y. Ann. Cas. 76, 30 N. Y. S. 406. as must be brought in the county of 
 See also Branth v. Branth, 57 Hun the defendant's residence. Moss v. 
 592, 19 Civ. Proc. 28, 10 N. Y. S. 638. Strickland, 138 Ga. 539, 75 S. E. 622. 
 
 9 Dahlstrom v. Featherstone, 18 l* Gtmnecticut. — Andrews v. Morse, 
 Idaho 179, 110 Pac. 243. See also § 12 Conn. 444. 
 
 668. Georgia. — Tarver v. Tarver, 53 Ga. 
 
 10 People v. Buffalo, 9 Misc. 403, 29 43. 
 
 N. Y. S. 1071. Minnesota. — Northrup v. Hayward, 
 
 11 Ex p. Smithson, 108 Tenn. 442, 67 102 Minn. 307, 12 Ann. Cas. 341, 113 
 S. W. 864. See also Dahlstrom v. N. W. 701. 
 
1072 ENFOECEMENT OF LIENS. [§ 669 
 
 which had been fraudulently conveyed, to a judgment recovered 
 by him in another case, it was held that he might issue execution 
 against the fraudiilent grantee for the services rendered in both 
 cases, although such grantee was not a party to the original suit.'* 
 So, it has been held that where a body execution would lie against 
 a judgment debtor at the instance of the client, such execution 
 may be issued by the attorney for the recovery of a lien which 
 has accrued to him for services rendered in procuring the judg- 
 ment. '* And where the parties enter satisfaction of a judgment in 
 fraud of the attorney's rights, such satisfaction may, in some juris- 
 dictions at least, be set aside, and an execution allowed to the 
 extent of the attorney's lien.'* Nor will the attorney be prevented 
 from issuing execution against several defendants by the fact that 
 one of them has taken an appeal in his own interest only." In 
 some states it is required that the nature and extent of the lien 
 should be judicially determined before the execution may issue.'' 
 
 § 669. Order on Sheriff or Assignee of Judgment to Pay 
 over Fund. — In some jurisdictions an attorney's lien may be 
 enforced summarily by an order to show cause why the proceeds 
 of the judgment should not be paid over to the attorney to the 
 extent of his lien.'* Thus, where an execution has been issued 
 
 Missouri. — ^Young v. Eenshaw, 102 15 Hobson v. Watson, 34 Me. 20, 56 
 
 Mo. App. 173, 76 S. W. 701 ; Curtis v. Am. Dec. 632. 
 
 Metropolitan St. K. Co., 118 Mo. App. 16 Northrup v. Hayward, 102 Minn. 
 
 341, 94 S. W. 762; Smoot v. Shy, 159 307, 12 Ann. Cas. 341, 113 N. W. 701; 
 
 Mo. App. 126, 139 S. W. 239. Young v. Renshaw, 102 Mo. App. 173, 
 
 Nebraska.— Jones v. Duff Grain Co., 75 g. w. 701; Smoot v. Shy, 159 Mo. 
 
 69 Neb. 91, 95 N. W. 1. ^pp 126, 139 S. W. 239 ; Jones v. Duff 
 
 Nmo rorfc.-Bloch v. Bloch, 136 f.^^.^ ^o., 69 Neb. 91, 95 N. W. 1; 
 
 App. Div. 770, 121 N. Y. S. 475; Al- . , , , -,-, .uu r, 
 
 , . ^ , „ TT „ , .„ Aclcerman v. Ackerman, 11 Abb. Pr. 
 
 bert Palmer Co. v. Van Orden, 49 ,,t ..^ > «-„ „ „ ,, 
 
 Super. Ct. 89, 64 How. Pr. 79, 4 Civ. i^' ^'^ ^56. Compare Crotty v. 
 
 Proc. 44; Commercial Tel. Co. v. McKenzie, 42 Super. Ct. (N. Y.) 192. 
 
 Smith, 19 Civ. Proc. 32, 10 N. Y. S. ^""^ ^^^ ^'^° *''« preceding section. 
 433; Ackerman «. Ackerman, 11 Abb. "Commercial Telegram Co. v. 
 
 Pr. 256. See also Moore v. Taylor, 2 Smith, 57 Hun 176, 19 Civ. Proc. 32, 
 
 How. Pr. N. S. 343; Merchant v. Ses- 1" N. Y. S. 433. 
 sions, 5 Civ. Proc. 24. l' Jones v. Duff Grain Co., 69 Neb. 
 
 14 Morrell v. Miller, 36 Ore. 412, 59 91, 95 N. W. 1. 
 Pac. 710. 19 Gray v. Maxwell, 50 Ga. 108; 
 
§§ 670, 671] ENFORCEMENT OF LIENS. 1073 
 
 by an assignee of the plaintiff, it has been held that the sheriff 
 may be stayed from paying the proceeds of the execution sale to 
 such assignee until the amount of the attorney's compensation can 
 be ascertained.*" So, it seems that an attorney may move for the 
 payment over of the proceeds to him by the assignee.^ 
 
 § 670. Intervention in Proceedings for Revival of Judg- 
 ment. — An attorney v?ho has a lien on a judgment may inter- 
 vene in proceedings for the revival thereof vs^here such action is 
 necessary for his protection, or he may proceed to a revival there- 
 of in his ov7n name to the extent of his lien. And that the court, 
 in any such proceeding, should render a judgment for the attorney 
 and against the judgment debtor for the amount of the lien, in- 
 stead of entering an order of revivor in the name of the attorney 
 to that extent, is vyithout prejudice to the judgment debtor.^ 
 
 § 671. Enforcement by Appeal and in Appellate Court. — 
 
 It has been held that an attorney may appeal from a judgment 
 against his client, although the client is satisfied therewith, for the 
 purpose of obtaining a more favorable judgment, so that he may 
 enforce his lien against the adverse party ; * but it seems that an 
 attorney may not so appeal against his client's consent* In some 
 jurisdictions the attorney will be protected in his compensation 
 by the appellate court as against a settlement made by the parties 
 pending proceedings for review; thus, under such circumstances, 
 an appeal has been dismissed without prejudice to any right 
 which the attorney might have in the premises.' And it has been 
 held that a plaintiff in error will not be allowed to withdraw the 
 writ over the objection of his counsel where such action would 
 
 Haynea v. Perry, 76 Ga. 33. See also « Greek v. MeDaniel, 68 Neb. 569, 94 
 
 Harney v. Demoss, 3 How. (Miss.) N. W. 518. 
 
 174; Pugh V. Boyd, 38 Miss. 326. » Adait v. Hall, 3 How. Pr. N. S. 
 
 ^CLoaners' Bank v. Nostrand, 53 (N. Y.) 373. 
 
 Super. Ct. (N. Y.) 52S. * Morrison v. Green, 96 Ga. 754, 23 
 
 1 In re Gates, 51 App. Div. 350, 31 S. E. 845 ; Nixon v. Ossenbeck, 129 Ky. 
 
 Civ. Proc. 88, 64 N. Y. S. 1050. And 588, 112 S. W. 645. 
 
 see also supra, §§ 648, 649, as to B Atlantic & G. C. Canal & Okeecbo- 
 
 assignments by the client as affecting bee Land Co. v. Kinsman, 29 Fla. 332, 
 
 the attorney's lien generally. 10 So. 555. 
 Attya. at L. Vol. II.— 68. 
 
1074 ENFOECEMENT OF LIENS. [§§ 672, 673 
 
 result in depriving the attorney of his lien rights.* And where 
 an attorney anticipates that the retention of jurisdiction hy an 
 appellate court may prevent him from enforcing his lien, it 
 seems that he may raise the question of his right to dismiss the 
 appeal.'' On the other hand, it has been held that an appeal from 
 a judgment, subsequently satisfied, will not be heard merely for 
 the purpose of protecting the rights of the plaintiff's attorney, and 
 that, in such case, the attorney's remedy is by motion in the court 
 below.' Nor will a cause which has been dismissed be reinstated 
 on motion of the defendant's attorney, who claims a lien on the 
 judgment.' 
 
 § 672. Taking Judgment by Default. — Where the parties 
 settle before the return day without the knowledge of the plain- 
 tiff's attorney, such attorney may enter judgment by default on 
 the failure of the defendant to answer, and enforce the same to 
 the extent of his lien.'* And the judgment so entered will not 
 be opened, unless the attorney's lien is paid,*' in the absence of 
 good reason for such action.'* In some jurisdictions, however, a 
 default judgment, taken under the circumstances above described, 
 will be opened where it appears that the settlement was honestly 
 made and that the client is a responsible person, or where the fees 
 of his counsel have been secured by the settlement." 
 
 Prosecuting Original Suit to Final Judgment. 
 
 § 673. Right to Prosecute Original Suit. — The right of an 
 attorney to enforce his charging lien by the prosecution of the 
 
 6 Walker v. Equitable Mortg. Co., Greenpoint Ferry Co., 5 Civ. Proc. 146, 
 
 114 Ga. 862, 40 S. E. 1010. . affirmed 98 N. Y. 660; Wood v. Trus- 
 
 ' Wait V. Atchison, T. & S. F. E. Co., tees of Northwest Presbyterian 
 
 204 Mo. 491, 103 S. W. 60. Church, 7 Abb. Pr. (N. Y.) 210 note. 
 
 8 Cock V. Palmer, 1 Robt. (N. Y.) " Coster v. Greenpoint Ferry Co., 5 
 658, 19 Abb. Pr. 372. See also Me- Civ. Proc. 146, affirmed 98 N. Y. 660. 
 Dowell V. Appleby, 1 How. Pr. (N. Y.) W In Eodgers v. Furse, 83 6a. 115, 
 229. 9 S. E. 669, it was held that a default 
 
 9 Piatt V. Jerome, 19 How. 384, 15 judgment would be opened where the 
 U. S. (L. ed.) 623. defendant was misled by the plaintiff's 
 
 16 Gallison & Hobron Co. v. Rawak, attorney as to the time of trial. 
 3 N. Y. S. 802. See also Coster v. is Publishers' Printing Co. v. Gillin 
 
§ 673] 
 
 ENFOECEMENT OF LIENS. 
 
 1075 
 
 original suit to final judgment has been recognized in many cases/* 
 though it has been said to rest in discretion.** This method of 
 
 Printing Co., 16 Misc. 558, 38 N. Y. S. 
 784, reversing 15 Misc. 464, 37 N. Y. 
 S. 198. 
 
 I* United Stores.— Eldridge v. Tfie 
 Ashley, 2 N. Y. Leg. Obs. 68, 8 Fed. 
 Cas. No. 4, 333; Gaines v. Travis, Abb. 
 Adm. 297, 9 Fed. Cas. No. 5,179; The 
 Planet, 1 Spr. 11, 19 Fed. Cas. No. 
 11,204; The Victory, 1 Blatchf. & H. 
 443, 28 Fed. Cas. No. 16,937 ; Herman 
 V. Metropolitan St. R. Co., 121 Fed. 
 184. 
 
 Connecticut. — De Wandelaer v. 
 Sawdey, 78 Conn. 654, 63 Atl. 446. 
 
 Georgia. — McDonald v. Napier, 14 
 Ga. 89; Jones v. Morgan, 39 Ga. 310, 
 99 Am. Dee. 458 ; Coleman v. Ryan, 58 
 Ga. 132; Manning v. Manning, 61 Ga. 
 137; Little v. Sexton, 89 Ga. 411, 15 
 S. E. 490, distingmsMng Haynes v. 
 Perry, 76 Ga. 33; Brown v. Georgia, 
 C. & N. R. Co., 101 Ga. 80, 28 S. E. 
 634; Johnson v. McCurry, 102 Ga. 471, 
 31 S. E. 88; Atlanta R. & Power Co. 
 ■0. Owens, 119 Ga. 833, 47 S. E. 213; 
 Penn v. McGhee, 6 Ga. App. 631, 65 S. 
 E. 686; Collier, Stephens & Co. v. 
 Hecht-Erettingliam Co., 7 Ga. App. 
 178, 66 S. E. 400. 
 
 Indiama. — Miedreich v. Ranl<, 40 
 Ind. App. 393, 82 N. E. 117, dis- 
 tinguishing Hanna v. Island Coal Co., 
 5 Ind. App. 163, 31 N. E. 846, 51 Am. 
 St. Rep. 246. 
 
 £^e»tMc7ci/.— Martin v. Smith, 110 S. 
 W. 413, 33 Ky. L. Rep. 582. 
 
 Michigan. — Weeks v. Wayne Circuit 
 Judges, 73 Mich. 256, 41 N. W. 269; 
 Carpenter v. Myers, 90 Mich. 209, 51 
 N. W. 206; Heavenrich v. Alpena Cir- 
 cuit Judge, 111 Mich. 163, 69 N. W. 
 226; Grand Rapids & I. R. Co. v. Che- 
 
 boygan Circuit Judge, 161 Mich. 181, 
 126 N. W. 56, 17 Detroit Leg. N. 270. 
 
 Nebraska.— Reynolia v. Reynolds, 
 10 Neb. 574, 7 N. W. 322; Lewis v. 
 Omaha St. R. Co., 114 N. W. 281. 
 
 New York. — Piclcard v. Yencer, 21 
 Hun 403, 10 N. Y. Wkly. Dig. 271; 
 Wilber v. Baker, 24 Hun 24 ; Keeler v. 
 Keeler, 51 Hun 505, 4 N. Y. S. 580; 
 Hart V. New York, 69 Hun 237, 23 N. 
 Y. S. 555, affirmed 139 N. Y. 610, 35 
 N. E. 204; Pilkington v. Brooklyn 
 Heights R. Co., 49 App. Div. 22, 30 
 Civ. Proc. 276, 63 N.Y. S. 211; Schrie- 
 ver V. Brooklyn H. R. Co., 49 App. 
 Div. 629, 63 N. Y. S. 217; Oliwill v. 
 Verdenhalven, 26 N. Y. St. Eep. 115, 
 7 N. Y. S. 99; Stahl v. Wadsworth, 13 
 Civ. Proc. 32, 10 N. Y. St. Rep. 
 228; Washburn v. Mott, 19 Civ. 
 Proc. 439, 12 N. Y. S. Ill; Kehoe 
 V. Miller, 10 Abb. N. Cas. 393 ; Deutseh 
 V. Webb, 10 Abb. N. Cas. 393; Tullis 
 V. Bushnell, 12 Daly 217, 65 How. Pr. 
 465; MeCabe v. Fogg, 60 How. Pr. 
 488; Talcott v. Bronson, 4 Paige 501. 
 
 Oregon. — Jackson v. Stearns, 48 
 Ore. 25, 84 Pao. 798, 5 L.R.A.(N.S.) 
 390. 
 
 Texas. — Powell v. Galveston, H. & 
 S. A. R. Co., 78 S. W. 975. 
 
 Utah. — Potter v. Ajax Min. Co., 19 
 Utah 421, 57 Pac. 270. 
 
 Washington. — Cline Piano Co. v. 
 Sherwood, 57 Wash. 239, 106 Pac. 742. 
 
 West Virginia. — Burkhart v. Scott, 
 69 W. Va. 694, 72 S. E. 784. 
 
 Wisconsin. — Howard v. Osceola, 22 
 Wis. 453 ; Smelker v. Chicago & N. W. 
 R. Co., 106 Wis. 135, 81 N. W. 994. 
 
 15 Howard v. Ward, (S. D.) 139 N. 
 W. 771. 
 
1076 ENFOECEMENT OF LIENS. [§ 674 
 
 enforcement is usually adopted where the parties have settled 
 without the consent of the attorney, and, of course, is only available 
 where such settlement, and the means adopted to effect it, are not 
 binding on the attorney.^* In New York it seems that this method 
 must be pursued by an attorney who wishes to enforce his lien 
 against the adverse party,* excepting where an independent action 
 will lie.* In some jurisdictions a defendant's attorney is entitled 
 to a lien for services rendered in connection with the establishment 
 of a counterclaim, and circumstances may possibly arise where an 
 action in which such a counterclaim has been asserted might be 
 continued for the protection of the defendant's attorney ; ' ordi- 
 narily, however, the defendant's attorney may not continue an 
 action to final judgment for the purpose of recovering compensa- 
 tion therein.* In other states this method of enforcing an attor- 
 ney's lien is not recognized.* 
 
 § 674. Procedure. — There is little or no uniformity in the 
 practice of the several states as to the continuation of the action 
 by an attorney for the purpose of enforcing his lien; indeed, the 
 decisions on this subject in any one state show but little harmony ; 
 and, in view of this fact, one jurist has stated that the right of an 
 attorney to proceed in this manner is "fanciful at best," and that 
 the decisions thereon were "a bundle of confusion." * As a gen- 
 eral rule, it is necessary to obtain leave of court to continue the 
 
 16 See supra, §§ 640-646. 442, 82 N. Y. S. 707, appeal dismissed 
 
 iSee supra, § 663. 86 App. Div. 321, 83 N. Y. S. 711; 
 
 8 See infra, §§ 676-683. Howard v. Eiker, 11 Abb. N. Cas. (N. 
 
 3 See Mo. Seas. L. (1901), p. 46, Y.) 113; Yoakley v. Hawley, 5 Lea 
 § 1; N. Y. Judiciary Law, § 475 ; Utah (Tenn.) 670. 
 
 Comp. Stat. § 135. And see also 5 Lamont v. Washington & George- 
 
 supra, § 598. town R. Co., 2 Maekey (D. C.) 502, 47 
 
 4 Morrison v. Green, 96 Ga. 754, 23 Am. Rep. 268; Story v. Hull, 143 111. 
 S. E. 845, distinguishing Fry v. Calder, 506, 32 N. E. 265 ; Farry v. Davidson, 
 74 Ga. 7; Florida Cent. & P. R. Co. v. 44 Kan. 377, 24 Pac. 419; Rind v. 
 Ragan, 104 Ga. 353, 30 S. E. 745; Hunsioker, 24 La. Ann. 571; Yonge «. 
 Saranac & Lake Placid R. Co. v. Ar- St. Louis Transit Co., 109 Mo. App. 
 nold, 37 Misc. 514, 75 N. Y. S. 1003, 235, 84 S. W. 184. 
 
 affirmed 72 App. Div. 620, 76 N. Y. S. 8 Per Gaynor, J., in Burpee v. Town- 
 
 1032; Pomeranz v. Marcus, 40 Misc. send, 29 Misc. 681, 61 N. Y. S. 467. 
 
§ 674] 
 
 ENFOECEMENT OF LIENS. 
 
 1077 
 
 action.'' And where a settlement has been entered, or the action 
 has been discontinued or dismissed, the attorney should first move 
 to vacate such settlement, dismissal, or discontinuance, and in con- 
 nection therewith he may ask leave to proceed with the action for 
 the protection of his lien ; ' in some cases, however, it seems to 
 have been held that a motion to vacate is unnecessary.® It has also 
 been held that the attorney may prosecute the action for his own 
 benefit in the name of his client,^" and that he should file a peti- 
 tion in his own name against both plaintiff and defendant, setting 
 forth his claim and lien, to which answers may be filed and issues 
 made up ; *^ while in another jurisdiction it is held that the proper 
 procedure is for the attorney to present his claim to the court, and 
 that the defendant should then plead the settlement, and upon the 
 issue so made the rights of the parties may be determined.'* On 
 the trial of the issue the attorney nawst establish not only his claim 
 and lien therefor, but also the defendant's liability to the plain- 
 tiff; '' and should he fail to do so, it seems that he must assume 
 the payment of any judgment for costs which the adverse party 
 may recover.** 
 
 7 Kretsinger v. Weber, 43 Neb. 468, 
 61 N. W. 718; Doyle v. New York, 0. 
 & W. E. Co., 66 App. Div. 398, 72 N. 
 Y. S. 936; Goddard v. Trenbath, 24 
 Hun (N. Y.) 182; Oliwill v. Verden- 
 halven, 17 Civ. Proc. 362, 26 N. Y. St. 
 Rep. 115, 7 N. Y. S. 99; Dimiek v. 
 Cooley, 3 Civ. Proc. (N. Y.) 141; 
 Washburn v. Mott, 19 Civ. Proc. 439, 
 12 N. Y. S. 111. Compare Forstman v. 
 Schulting, 35 Hun (N. Y.) 504. 
 
 8 Grand Rapids & I. E. Co. v. Che- 
 boygan Circuit Judge, 161 Mich. 181, 
 126 N. W. 56, 17 Detroit Leg. N. 270 ; 
 Pickard v. Yencer, 21 Hun 403, 10 N. 
 Y. Wkly. Dig. 271. And see also 
 supra, § 658. 
 
 9 Wilbur V. Baker, 24 Hun (N. Y.) 
 24; Kehoe v. Miller, 10 Abb. N. Cas. 
 (N. Y.) 393. See also Yonge v. St. 
 Louis Transit Co., 109 Mo. App. 235, 
 84 S. W. 184. 
 
 10 O'Brien v. Metropolitan St. R. 
 Co., 27 App. Div. 1, 27 Civ. Proc. 152, 
 50 N. Y. S. 159. 
 
 11 Reynolds v. Reynolds, 10 Neb. 
 574, 7 N. W. 322. 
 
 12 Grand Rapids & I. R. Co. v. Che- 
 boygan Circuit Judge, 161 Mich. 181, 
 126 N. W. 56, 17 Detroit Leg. N. 270. 
 
 13 Gray v. Lawson, 36 Ga. 629 ; At- 
 lanta R. & Power Co. v. Owens, 119 Ga. 
 833, 47 S. E. 213; Casucci v. Alle- 
 ghany & K. R. Co., 65 Hun 452, 29 
 Abb. N. Cas. 252, 20 N. Y. S. 343; 
 Smelker v. Chicago & N. W. R. Co., 
 106 Wis. 135, 81 N. W. 994. Compare 
 Barthwell v. Chicago, M. & St. P. R. 
 Co., 138 la. 688, 116 N. W. 813; Yonge 
 V. St. Louis Transit Co., 109 Mo. App. 
 235, 84 S. W. 184. 
 
 14 O'Brien v. Metropolitan St. R. Co., 
 27 App. Div. 1, 27 Civ. Proc. 152, 50 
 N. Y. S. 159. 
 
1078 EITFOBCEMBNT OF LIENS. [§ 675 
 
 § 675. Permission to Prosecute Denied. — An attorney will 
 not be permitted to prosecute an action to final judgment in all 
 cases, even though compensation may be owing to him for serv- 
 ices rendered therein.** It is well settled that fair, honest settle- 
 ments of litigation by the parties themselves, whether with or with- 
 out the knowledge and consent of counsel, are approved by the 
 law ; ** and formerly it was necessary, in order to warrant the 
 granting of an order permitting an attorney to prosecute the suit 
 to final judgment, to show that a fraud was perpetrated upon 
 him ; " though it is not necessary now, in most jurisdictions at 
 least, to show the existence of actual fraud.*' It was also formerly 
 held that actions which were not assignable, as, for instance, those 
 for personal injuries and other torts, and also actions for un- 
 liquidated damages, could not be continued by the attorney for 
 his own protection after the parties had settled them; *' but in 
 several jurisdictions an attorney's lien now exists for services 
 rendered in actions of this character, and, where this is so, such 
 action may be continued by the attorney should the circumstances 
 warrant it.^" 'Nov will an attorney be permitted to continue a 
 matrimonial action for the recovery of his compensation; nor, 
 indeed, as a general rule, may he acquire a lien which may be en- 
 forced therein.* So an attorney who fails to coniply with statu- 
 tory requirements which are essential to render his lien effective,* 
 
 15 Pitcher v. Robertson, 66 Hun 632 246, 72 N. Y. S. 5 ; McCabe v. Fogg, 
 mem., 21 N. Y. S. 66; Burpee v. Town- 60 How. Pr. (N. Y.) 48S. 
 
 send, 29 Misc. 681, 61 N. Y. S. 467. " Voigt Brewery Co. v. Donovan, 
 
 16 See supra, §§ 640-645. 103 Mich. 190, 61 N. W. 343 ; Boogren 
 
 17 Dolliver v. American Swan Boat v. St. Paul City R. Co., 97 Minn. 51, 
 Co., 32 Misc. 264, 8 N. Y. Ann. Cas. 106 N. W. 104, 114 Am. St. Rep. 691, 3 
 74, 31 Civ. Proc. 94, 65 N. Y. S. 978. L.R.A. (N. S.) 379; Pulver v. Harris, 
 See also Schriever t). Brooldyn Heights 62 .Barb. (N. Y.) 50O; Coughlin «;. 
 R. Co., 30 Misc. 145, 30 Civ. Proc. 67, New Yorlc Cent. & H. R. R. Co., 71 N. 
 61 N. Y. S. 644, 890; Rasquin v. Y. 443, 27 Am. Rep. 75, modifying 8 
 Kniclcerbocker Stage Co., 21 How. Pr. Hun 136; Hutchinson v. Pettes, 18 Vt. 
 (N. Y.) 293, 12 Abb. Pr. 324; Tomp- 614. 
 
 Icins V. Nashville, C. & St. L. R. Co., 20 See supra, § 616; and see gener- 
 
 110 Tenn. 157, 72 S. W. 116, 100 Am. ally, supra, §§ 613-633. 
 
 St. Rep. 795, 61 L.R.A. 340. 1 See supra, § 637. 
 
 18 Young V. Howell, 64 App. Div.. a See supra, §§ 600-605. 
 
§ 67.6] ENFORCEMENT OF LIENS. 1079 
 
 or one who has lost or waived his lien,' will not be permitted to 
 continue an action for the purpose of recovering his compensation 
 therein.* And in one jurisdiction at least it is held that an at- 
 torney will not be permitted to continue an action, as against the 
 defendant, where it appears that his client is solvent, or where his 
 compensation has been sufficiently provided for in the making of 
 the settlement.' So, it has been held that an attorney will not be 
 allowed to continue an action which his client was permitted to 
 settle under an agreement with the attorney,* or an action which 
 has abated ; '' nor will he be permitted to proceed with the action 
 where he has been guilty of laches,' or where no lien has accrued 
 in his favor,' or where it is manifest to the court that the con- 
 tinuance of the suit will not aid the attorney in recovering his 
 fees." 
 
 Enforcement by Independent Action. 
 
 § 676. By Action at Lavsr. — In many jurisdictions an attor- 
 ney's charging lien may be enforced against the adverse party by 
 an independent action at law,*^ and this is especially true where 
 
 S See supra, §§ 606-612. Cooley, 3 Civ. Proc. 141 ; Dumowith v. 
 
 i The Bella, 91 Fed. 540 ; Nielsen v. Marks, 84 N. Y. S. 453. 
 
 Albert Lea, 91 Minn. 388, 392, 98 N. « In re Evans' Will, 33 Misc. 567, 
 
 W. 195, 197; Lavender v. Atkins, 20 68 N. Y. S. 936. 
 
 Neb. 206, 29 N. W. 467 ; Minto v. Baur, '' Harris v. Tison, 63 Ga. 629, 36 Am. 
 
 53 Hun 636 mem., 17 Civ. Proc. 314, 6 ^^P- ^'^^• 
 
 N. Y. S. 444, modified 55 Hun 609, 8 ' Crisenza v. Auohmuty, 121 App. 
 
 j^ Y g 933 Div. 611, 106 N. Y. S. 335. 
 
 "''-', - _ , __.,, _„ 9 Oliver v. Sheeley, 11 Neb. 521, 9 
 
 ^ New York. — In re Evans' Will, 58 „„,„„, J;. , ,, 
 
 A TV /.Ao lA TwT 1^ A n \n N.W. 689; Rook D. Dickinson, 38 Misc. 
 
 tZ. ^-! ' ; ; t 690, 11 N. Y. Ann. Cas. 454, 78 N. Y. 
 
 69 N. Y. S. 482, rehearing demed, 65 g ^g ^^^^^^^ ^^^ ^^^^ ^ p^^ 
 
 App. Div. 610, 72 N. Y. S. 493; Young . . r< n i i^ too xt -i7 o 
 
 '^'^ ' ' e> vision Co. v. Del Favero, 123 N. Y. S. 
 
 V. Howell, 64 App. Div. 246, 72 N. Y. ^g 
 
 S. 5; Smith v. Acker Process Co., 102 \^ g^.^^^^^ ^ Wollenberg, 51 Ore. 88, 
 
 App. Div. 170, 92 N. Y. S. 351; McKay 93 Pac. 3079, 14 L.E.A. (N.S.) 1095. 
 
 V. Morris, 35 Misc. 571, 72 N. Y. S. 23 ; h Colorado.— Flint v. Hubbard, 16 
 
 Rook V. Dickinson, 38 Misc. 690, 11 N. Colo. App. 464 66 Pac. 446. 
 
 Y. Ann. Cas. 454, 78 N. Y. S. 287 ; Georgia. — Suwannee Turpentine Co. 
 
 Cohn V. Polstein, 41 Misc. 431, 84 N. v. Baxter, 109 Ga. 597, 35 S. E. 142. 
 
 Y. S. 1072; Witnark v. Perley, 43 Idaho.— See Dahlstrom v. Feather- 
 
 Misc. 14, 86 N. Y. S. 756 ; Dimick v. atone, 18 Idaho 179, 110 Pac. 243. 
 
1080 
 
 ENFOECEMENT OF LIENS. 
 
 [§ 676 
 
 the defendant has participated in a fraud upon the attorney/* 
 though it is only by virtue of clear language in the statute that 
 such proceedings are cognizable other than in equity.'* In some 
 states a lien acquired in an inferior court may be enforced by 
 action in a court of record." And in Missouri it has been held 
 that an attorney's lien may be enforced by an action at law, even 
 though there has been no verdict, report, decision, or judgment 
 in the client's favor,*' and whether the client is or is not financially 
 responsible.*® Of course, an action at law will also lie against 
 the client for the enforcement of a lien which has accrued to his 
 attorney ; " but such action does not differ in any material respect 
 from actions by attorneys to recover compensation generally. This 
 subject has been considered heretofore.*' 
 
 Illinois. — Standidge v. Chicago E. 
 Co., 254 111. 524, Ann. Cas. 1913C 65, 
 98 N. E. 963. 
 
 Indiana. — Blankenbaker v. Bank of 
 Commerce, 85 Ind. 459. 
 
 Iowa. — Hubbard v. EUithorpe, 135 
 la. 259, 112 N. W. 796, 124 Am. St. 
 Rep. 271; Barthell v. Chicago, M. & 
 St. P. R. Co., 138 la. 688, 116 N. W. 
 813; Jamison v. Ranck, 140 la. 635, 
 119 N. W. 76. 
 
 Kansas. — Farry v. Davidson, 44 
 Kan. 377, 24 Pac. 419. 
 
 Kentucky. — Proctor Coal Co. v. Tye, 
 96 S. W. 512, 29 Ky. L. Rep. 804. 
 
 Missouri. — O'Connor v. St. Louis 
 Transit Co., 198 Mo. 622, 8 Ann. Cas. 
 703, 97 S. W. 150, 115 Am. St. Rep. 
 495; Taylor v. St. Louis Transit Co., 
 198 Mo. 715, 97 S. W. 155; Young v. 
 Renshaw, 102 Mo. App. 173, 76 S. W. 
 701; Younge v. St. Louis Transit €o., 
 109 Mo. App. 235, 84 S. W. 184; Whit- 
 well V. Aurora, 139 Mo. App. 597, 123 
 S. W. 1045; Laughlin v. Excelsior 
 Powder Mfg. Co., 153 Mo. App. 508, 
 134 S. W. 116; Wolf V. United Rys. 
 Co., 155 Mo. App. 125, 133 S. W. 1172. 
 
 Montana. — Coombs v. Knox, 28 
 
 Mont. 202, 72 Pac. 641; Gilchrist v. 
 Hore, 34 Mont. 443, 87 Pac. 443. 
 
 A justice of the peace may, in some 
 jurisdictions, entertain an action for 
 the enforcement of attorneys' liens. 
 O'Connor v. St. Louis Transit Co., 198 
 Mo. 622, 8 Ann. Cas. 703, 97 S. W. 
 150, 115 Am. St. Rep. 495. 
 
 And courts of admiralty have juris- 
 diction of a suit by a proctor to re- 
 cover his costs and fees after a pri- 
 vate settlement between the parties. 
 McDonald v. The Cabot, Newb. 348, 
 16 Fed. Cas. No. 8,759. 
 
 1« Powell V. Galveston, H. & S. A. 
 R. Co. (Tex.) 78 S. W. 975. And see 
 also supra, § 642, as to fraudulent 
 settlements generally. 
 
 13 Standidge v. Chicago R. Co., 254 
 111. 524, Ann. Cas. 1913C 65, 98 N. 
 E. 963. 
 
 14 Tynan v. Mart, 53 Misc. 49, 103 
 N. Y. S. 1033. 
 
 16 Yonge V. St. Louis Transit Co., 
 109 Mo. App. 235, 84 S. W. 184. 
 
 16 Yonge V. St. Louis Transit Co., 
 109 Mo. App. 235, 84 S. W. 184. 
 
 " Lindner v. Hine, 84 Mich. 511, 48 
 N. W. 43. 
 
 "See, supra, §§ 487-568. 
 
§ 677] 
 
 ENFOECEMENT OF LIENS. 
 
 1081 
 
 An action at law is not maintainable for the enforcement of a 
 lien against the adverse party in some jurisdictions.^' 
 
 § 677. By Suit in Equity. — So, an attorney's lien may be 
 enforced by a suit in equity; and this, undoubtedly, is the most 
 appropriate mode of enforcement, excepting, of course, where an 
 exclusive method is provided by statute. Enforcement by a suit 
 in equity is peculiarly applicable where no adequate remedy 
 exists at law, and, in cases of this character, the equitable remedy 
 is allowable notwithstanding the existence of a remedy at law by 
 statute or otherwise.^" Thus, it has been held in one jurisdiction 
 
 iSTullis V. Bushnell, 65 How. Pr. 
 (N. Y.) 465; Pennsylvania Co. v. 
 Thatcher, 78 Ohio St. 175, 85 N. E. 
 55; Werner v. George Zehler Pro- 
 vision Co., 31 Ohio Cir. Ct. Kep. 632; 
 Smelker v. Chicago & JST. W. R. Co., 
 106 Wis. 135, 81 N. W. 994. 
 
 20 United States. — Ingersoll v. Cor- 
 am, 127 Fed. 418; Meighan v. Amer- 
 ican Grass Twine Co., 154 Fed. 346, 
 83 C. C. A. 124. 
 
 AlaioMna. — Higley v. White, 102 
 Ala. 602, 15 So. 141; German ». 
 Browne, 137 Ala. 429, 34 So. 985; 
 Fuller V. Clemmons, 158 Ala. 340, 48 
 So. 101. 
 
 Arkansas. — Gist v. Hanly, 33 Ark. 
 233; Lane v. Hallum, 38 Ark. 385; 
 Hershy v. Duval, 47 Ark. 86, 14 S. W. 
 469; Greenlee v. Eowland, 85 Ark. 
 101, 107 S. W. 193; Osborne v. Waters, 
 92 Ark. 388, 123 S. W. 374. 
 
 Colorado. — Fillmore v. Wells, 10 
 Colo. 228, 15 Pac. 343, 3 Am. St. Rep. 
 567. 
 
 District of Columbia. — Bendheim v. 
 Pickford, 31 App. Cas. 488. 
 
 Georgia. — Morrison v. Ponder, 45 
 Ga. 167. 
 
 Indiana. — Koons v. Beach, 147 Ind. 
 137, 45 N. E. 601, 46 N. E. 587. 
 
 Iowa. — See Brown v. Morgan, 163 
 Fed. 395 (construing Iowa statute). 
 
 Michigan. — Kilbourne v. Wiley, 124 
 Mich. 370, 83 N. W. 99. 
 
 Minnesota. — Farmer «. Stillwater 
 Water Co., 108 Minn. 41, 121 N. W. 
 418. 
 
 Missouri. — Wait v. Atchison, T. & 
 S. F. R. Co., 204 Mo. 491, 103 S. W. 
 60; Smoot v. Shy, 159 Mo. App. 126, 
 139 S. W. 239. 
 
 Montana. — Coomhe v. Knox, 28 
 Mont. 202, 72 Pae. 641. 
 
 New Jersey. — See Black v. Black, 
 32 N. J. Eq. 74. Compare Weller v. 
 Jersey City, H. & P. St. R. Co., 66 N. 
 J. Eq. 11, 57 Atl. 730, affirmed 68 N. 
 J. Eq. 659, 6 Ann. Cas. 442, 61 Atl. 
 459. 
 
 New York. — Kenney v. Apgar, 93 N. 
 Y. 539 ; Goodrich v. McDonald, 112 N. 
 Y. 157, 19 N. E. 649; Deering v. 
 Schreyer, 171 N. Y. 451, 64 N. E. 179, 
 reversing 58 App. Div. 322, 68 N. Y. S. 
 1015; Fischer -Hansen v. Brooklyn 
 Heights R. Co., 173 N. Y. 492, 66 N. E. 
 395, reversing 63 App. Div. 356, 71 
 N. Y. S. 513; In re Pieris, 176 
 N. Y. 566, 68 N. E. 1123, affirm- 
 ing 82 App. Div. 466, 81 N. Y. S. 
 927; In re Lexington Ave., 30 App. 
 
1082 
 
 ENFOECEMENT OP LIENS. 
 
 [§ 678 
 
 that the statutory remedy does not exclude the right to bring an 
 equitable action for the enforcement of an attorney's lien.* The 
 trial follows the usual course of trials in equity, the hearing being 
 had before the chancellor. The granting of a jury trial is dis- 
 cretionary with the court, unless it is otherwise provided by 
 statute.* 
 
 § 678. Parties. — A suit for the enforcement of an attorney's 
 lien may be brought by the attorney, or his assignee; ' and against 
 the adverse party, or the client, or both ; * and in some jurisdic- 
 tions the lien may be enforced against third parties into whose 
 hands the subject-matter of the litigation may come.* So, the lien 
 may be enforced as against sureties.* But where certain heirs 
 assigned an interest in their share of an estate to another heir, 
 with the understanding that such assignee should employ counsel 
 for certain purposes, and that the property transferred should be 
 
 Div. 602, 27 Civ. Proc. 245, 52 N. Y. 
 S. 203, affirmed 157 N. Y. 678, 51 N. 
 E. 1092; Eochfort v. Metropolitan St. 
 E. Co., 50 App. Dlv. 261, 30 Civ. Proc. 
 285, 63 N. Y. S. 1036; Mathot v. Trie- 
 bel, 98 App. Div. 328, 90 N. Y. S. 903 ; 
 Kuelin V. Syracuse Eapid Transit E. 
 Co., 104 App. Div. 580, 93 N. Y. S. 
 883; Eansom v. Cutting, 112 App. 
 Div. 150, 98 N. Y. S. 282, affirmed 188 
 N. Y. 447, 81 N. E. 324; Dolliver v. 
 American Swan Boat Co., 32 Misc. 
 264, 65 N. Y. S. 978; Kennedy v. 
 Steele, 35 Misc. 105, 71 N. Y. S. 237; 
 Skinner .v. Busse, 38 Misc. 265, 77 N. 
 Y. S. 560; Cohn v. Polstein, 41 Misc. 
 431, 84 N. Y. S. 1072; Oliwill v. 
 Verdenhalven, 17 Civ. Proc. 362, 7 N. 
 Y. S. 99; Fox v. Fox, 24 How. Pr. 
 409. 
 
 Ohio. — Pennsylvania Co. v. Thatch- 
 er, 78 Ohio St. 175, 85 N. E. 55. 
 
 Oregon. — -Alexander v. Munroe, 54 
 Ore. 500, 101 Pac. 903, 103 Pac. 514, 
 135 Am. St. Eep. 840. 
 
 Tennessee. — McCamy v. Key, 3 Lea 
 247; Covington v. Bass, 88 Tenn. 496, 
 12 S. W. 1033; Payne v. Payne, 106 
 Tenn. 467, 61 S. W. 767; Brown v. 
 Bigley, 3 Tenn. Ch. 618. 
 
 1 Fiseher-Hansen v. Brooklyn 
 Heights E. Co., 173 N. Y. 492, 66 N. 
 E. 395, reversing 63 App. Div. 356, 71 
 N. Y. S. 513. Where an attorney's 
 right to a lien is clear, he may en- 
 force it by suit in equity, and is not 
 limited to an application to the court 
 by petition. Morey v. Schuster, 81 
 Misc. 515, 142 N. Y. S. 1054. 
 
 e Sweeley v. Sieman, 123 la. 183, 98 
 N. W. 671; Jamison v. Eanck, 140 la. 
 635, 119 N. W. 76; Weicher v. Cargill, 
 86 Minn. 271, 90 N. W. 402. 
 
 8 See swpra, § 656. 
 
 * See supra, % 657. And see also 
 Oishei v. Metropolitan St. E. Co., 110 
 App. Div. 709, 35 Civ. Proc. 240, 97 
 N. Y. S. 447. 
 
 6 See supra, §§ 618, 626. 
 
 fl See infra, § 683. 
 
§ 679] ENFORCEMENT OF LIENS. 1083 
 
 payment in full for any liability which the assignee might incur, 
 it was held that the assignors were neither necessary nor proper 
 parties to a suit to enforce an attorney's lien for services rendered 
 to their assignee/ And it has also been held that a husband is 
 not a necessary party in a suit to establish a lien on funds paid 
 by him to the clerk of the court to satisfy a money judgment in 
 an action for divorce.' 
 
 § 679. Pleading and Proof. — In a suit for the establishment 
 of an attorney's lien, it is essential that the complaint or bill 
 should show every fact upon which the claim is predicated; thus, 
 it is usual to set forth the employment of the attorney, the per- 
 formance of the duties undertaken by him or some sufficient ex- 
 cuse for nonperformance, the accrual of a lien, the amount there- 
 of, and the fact that it remains unpaid.' But the amount due need 
 not be definitely fixed in all cases, and this is necessarily so where 
 no amount has been agreed upon by the parties, and the recovery 
 is, therefore, confined to reasonable compensation for the services 
 rendered.*" The pleading should also show notice of the lien, 
 and compliance with statutory requirements in this respect.'* It 
 has been held that several liens may be consolidated in one suit, 
 although the better practice, it seems, is to bring separate suits 
 for the enforcement of each lien.** An attorney's lien on a de- 
 cree may be enforced by a petition to the chancellor, instead of an 
 
 1 1ngersoU v. Coram, 127 Fed. 418. Minnesota. — Wetherby v. Weaver, 
 
 8 Hubbard v. Ellithorpe, 135 la. 259, 51 Minn. 73, 52 N. W. 970. 
 
 112 N. W. 796, 124 Am. St. Rep. 271. Montana. — Coombe v. Knox, 28 
 
 9 AZoftoma.— Weaver v. Cooper, 73 Mont. 202, 72 Pac. 641. 
 
 Ala. 318 Oregon. — Jackson v. Stearns, 48 
 
 Arfca«sas.-Kachels v. Doniphan 0^«- 25, 84 Pac. 798, 5 L.R.A.(N.S.) 
 
 390. 
 
 10 Coombe v. Knox, 28 Mont. 202, 
 72 Pac. 641. 
 
 11 Taylor v. St. Louis Merchants' 
 Colo. App. 464, 66 Pac. 446. g^j^^^ Terminal E. Co., 207 Mo. 495, 
 
 Oeorgia.—Vavis v. Jackson, 86 Ga. io5 S. W. 740. And see also supra, 
 
 138, 12 S. E. 299. H 600-605, as to notice of lien gener- 
 
 Indiana. — Dunning v. Galloway, 47 ally. 
 
 Ind. 182 ; Day v. Bowman, 109 Ind. 12 Suwannee Turpentine Co. v. Bax- 
 
 383, 10 N. E. 126. ter, 109 Ga. 597, 35 S. E. 142. 
 
 Lumber Co., 98 Ark. 529, 136 S. W. 
 658. 
 Colorado. — Flint v. Hubbard, 16 
 
1084 ENFORCEMENT OF LIENS. [§ 680 
 
 original bill.*' In a suit against an assessment insurance asso- 
 ciation to enforce an attorney's lien for services rendered in pro- 
 curing a judgment on an insurance certificate, it was held that 
 the petition should allege that the funds on which a lien was 
 claimed were the proceeds of an assessment made on account of 
 the death of the person named in the certificate, or that the surplus 
 fund of the company was sufiicient to pay the claim.'* The plead- 
 ing in actions for compensation generally has been considered 
 heretofore.*' 
 
 The burden of proof rests with the attorney ; ** but where a set- 
 tlement has been effected, it has been held that he need not show 
 that his client had a meritorious cause." Evidence in actions for 
 compensation generally has been discussed in that connection." 
 
 § 680. Defenses. — The defendant may set up and prove, in 
 bar of the action, any fact which has a tendency to rebut the 
 plaintiff's claim ; thus, it may be shown that no lien has accrued,*' 
 or that, if one did accrue, it has been waived or lost,*" or was 
 provided for in making the settlement.* So, it may be shovm in 
 defense that the attorney was not authorized to appear in the 
 litigation wherein it is alleged that the lien accrued,* or that the 
 
 13 Fuller V. Clemmons, 158 Ala. 340, Nebraska. — Phillips v. Hogue, 63 
 
 48 So. 101. Neb. 192, 88 N. W. 180. 
 
 1* Hentig v. Benevolent Ass'n, 45 New York, — Grossman v. Smith, 116 
 
 Kan. 462, 25 Pac. 878. App. Div. 791, 102 N. Y. S. 18; 
 
 15 See supra, §§ 494-499. Knickerbocker Inv. Co. v. Voorhees, 
 
 16 Wolf V. United Rys. Co., 155 Mo. 128 App. Div. 639, 112 N. Y. S. 842. 
 App. 125, 133 S. W. 1172. «o Hall v. Lockerman, 127 Ga. 537, 
 
 17 Barthell v. Chicago, M. & St. P. 56 S. E. 759 ; Fischer-Hansen v. Brook- 
 R. Co., 138 la. 688, 116 N. W. 813; lyn Heights E. Co., 173 N. Y. 492, 66 
 Yonge V. St. Louis Transit Co., 109 N. E. 395. See also Loofbourow v. 
 Mo. App. 235, 84 S. W. 184. Compare Hicks, 24 Utah 49, 66 Pac. 602, 55 
 the cases cited supra, note 9. L.R.A. 874. 
 
 u See supra, §§ 501-550. l Lee v. Vacuum Oil Co., 126 N. Y. 
 
 19 United States. — O'Flaherty v. 579, 670, 27 N. E. 1018, 1020. 
 
 Hamburg-American Packet Co., 168 2 Kelly v. New York City R. Co., 122 
 
 Fed. 411. App. Div. 467, 106 N. Y. S. 894; Her- 
 
 Alalama. — McCaa v. Grant, 43 Ala. man v. New York City R. Co., 122 
 
 262. App. Div. 469, 106 N. Y. S. 896; Guli- 
 
 Oeorgia. — Brown v. Georgia, C. & ano v. Whitenack, 9 Misc. 562, 24 Civ. 
 
 N. R. Co., 101 Ga. 80, 28 S. E. 634. Proc. 55, 30 N. Y. S. 415. 
 
681] 
 
 ENFORCEMENT OF LIENS. 
 
 1085 
 
 client is solvent,* or that the attorney acted under a void con- 
 tract.* But it has been held that the fact that the services were 
 rendered in different courts cannot be set up in defense.* The 
 previous discussion of defenses to actions for compensation gen- 
 erally should be consulted in this connection.® 
 
 § 681. Recovery and Enforcement Thereof. — The amount 
 of the recovery must, of course, depend upon the circumstances.'' 
 In a previous chapter consideration has been given to the amount 
 of compensation to which an attorney is entitled, together with 
 the various matters which affect the same.' When judgment has 
 been entered it may be enforced in accordance with the local prac- 
 tice. It has been held that the judgment need not provide that 
 execution shall first issue against the client, and this is especially 
 true where it appears that the client is financially irresponsible, 
 or is without the jurisdiction.' 
 
 3 Young V. Howell, 64 App. Div. 246, 
 72 N. Y. S. 5; Webb v. Parker, 130 
 App. Div. 92, 114 N. Y. S. 489; Mit- 
 chell V. Mitchell, 143 App. Div. 172, 
 127 N. Y. S. 1065 ; Butts v. Carey, 143 
 App. Div. 356, 128 N. Y. S. 533; Mc- 
 Kay V. Morris, 35 Misc. 571, 72 N. Y. 
 S. 23; Witmark v. Pei-ley, 43 Misc. 
 14, 86 N. Y. S. 756; Gurley v. Gruen- 
 stein, 44 Misc. 268, 89 N. Y. S. 887; In 
 re Goodale, 58 Misc. 182, 108 N. Y. S. 
 949. Compare Yonge v. St. Louis 
 Transit Co., 109 Mo. App. 235, 84 S. 
 V,\ 384. 
 
 *Ingersoll r. Coal Creek Coal Co., 
 117 Tenn. 263, 10 Ann. Cas. 829, 98 S. 
 W. 178, 119 Am. St. Kep. 1003, 9 
 L.R.A.(N.S.) 282. 
 
 6 Weaver v. Cooper, 73 Ala. 318. 
 
 6 See supra, §§ 551-564. 
 
 ' United States. — ^Herman v. Metro- 
 politan St. R. Co., 121 Fed. 184. 
 
 Iowa. — Parsons v. Hawley, 92 la. 
 175, 80 N. W. 520. 
 
 Kentucky. — Louisville & N. R. Co. 
 V. Givens, 13 Ky. L. Rep. 491. 
 
 Missouri. — Stephens v. Metropolitan 
 St. Ry. Co., 157 Mo. App. 656, 138 S. 
 W. 904. 
 
 Nebraska. — Griggs v. White, 5 Neb. 
 467.' 
 
 New York. — In re Snyder, 119 App. 
 Div. 277, 104 N. Y. S. 571; Baxter v. 
 Connor, 119 App. Div. 450, 104 N. Y. 
 S. 327 ; Albert Palmer Co. v. Van Or- 
 den, 49 Super. Ct. 89, 4 Civ. Proe. 44; 
 Oliwell V. Verdenhalven, 17 Civ. Proc. 
 362, 7 N. Y. S. 99 ; Hall v. Ayer, 19 
 How. Pr. 91, 9 Abb. Pr. 220. 
 
 8 See supra, §§ 439-486, 566. As to 
 the recovery of interest, see supra, 
 § 567. 
 
 9 Oishei v. Pennsylvania R. Co., 117 
 App. Div. 110, 119, 102 N. Y. S. 368, 
 374, affirmed 191 N. Y. 544, 85 N. E. 
 1113. 
 
1086 ENFOECEMENT OF LIENS. [§§ 682-684 
 
 § 682. Enforcement against Judgment. — Where a lien has 
 attached to a judgment or decree," it may be enforced against the 
 same.^^ And in some jurisdictions it is held that an action may 
 be maintained on the judgment by the attorney for the purpose 
 of enforcing his lien; ^* it has been held, however, that an attor- 
 ney cannot maintain such an action without his client's consent.*' 
 
 § 683. Enforcement against Provisional Remedies and 
 Sureties. — It has been held that an attorney's lien extends to, 
 and may be enforced against, all provisional remedies or securities 
 given in the action after its commencement," and also to all suits 
 arising from the original action and incidental to its enforce- 
 ment.** Thus, a lien may be enforced against the surety on a 
 bail bond, especially one which has been assigned to the attorney,*' 
 or against a replevin bond," or against the sureties on an appeal 
 bond.*' So, it has been held that an attorney may prosecute an 
 action against an officer for taking an insufficient bond in a replevin 
 suit.*' 
 
 Enforcement of Retaining Lien. 
 
 § 684. Generally. — An attorney's retaining lien, as stated 
 heretofore, is merely a right to retain in his possession certain 
 property of the client until his compensation has been paid.^" It 
 
 10 See supra, §§ 634-637. 16 Newberg v. Schwab, 49 Super Ct. 
 
 llTarveri!. Tarver, 53 Ga. 43; Cur- (N. Y.) 232; . Shackleton v. Hart, 20 
 
 tis «. Metropolitan St. R. Co., 118 Mo. How. Pr. (N. Y.) 39; Campbell ». 
 
 App. 341, 94 S. W. 762. Grove, 2 Johns. Cas. (N. Y.) 105. 
 
 12 Stone V. Hyde, 22 Me. 318; " Newbert v. Cunningham, 50 Me. 
 
 Woods V. Verry, 4 Gray (Mass.) 357; 231, 79 Am. Dee. 612. 
 
 Kippw.Eapp,7Civ. Proc. (N. Y.)316. W Johnson v. McMillan, 13 Colo. 
 
 iSHorton v. Champlin, 12 R. I. 550, 423, 22 Pac. 769; Coombe v. Knox, 28 
 
 34 Am. Rep. 722. Mont. 202, 72 Pac. 641. See also 
 
 l*Kipp V. Eapp, 7 Civ. Proe. (N. Knickerbocker Inv. Co. v. Voorhees, 
 
 Y.) 316; Crouch v. Hoyt, 24 Civ. Proc. 128 App. Div. 639, 112 N. Y. S. 842. 
 
 60, 30 N. Y. S. 406. Compare Cornell 19 Newbert v. Cunningham, 50 Me. 
 
 V. Donovan, 14 Daly 292, 12 N. Y. St. 231, 79 Am. Dec. 612. 
 
 Rep. 117. 20 See swpra, §§ 573-577, 599, 638, 
 
 IB Newbert v. Cunningham, 50 Me. 639. Cones v. Brooks, 60 Neb. 698, 84 
 
 231, 79 Am. Dec. 612. And see also N. W. 85. 
 supra, § 595, 
 
684] 
 
 ENFOKCEMENT OI" LIESS. 
 
 1087 
 
 cannot be actively enforced ; ^ but it may be determined and en- 
 forced by the court on the application of one who is interested 
 therein,* or in an action by the attorney for compensation.' It has 
 been held, however, that a surrogate's court has no jurisdiction to 
 enforce this lien.* The absolute right which, under the New 
 York judiciary law, an attorney, having money in his hands 
 belonging to his client, has to a summary determination by the 
 court of the existence and amount of his lien, is not dependent 
 on his showing that he had preserved the money intact ; but it is 
 enough if he is ready, able, and willing to account to the client.* 
 
 I England. — Heslop v. Metcalfe, 3 
 Myl. & C. 183; Bozon v. Bolland, 4 
 Myl. & C. 354, 358; Colegrave v. Man- 
 ley, T. & E. 400; West of England 
 Bank v. Batchelor, 51 L. J. Ch. 199. 
 
 United States. — McPherson v. Cox, 
 96 U. S. 404, 24 U. S. (L. ed,) 746; 
 In re Wilson, 12 Fed. 235, 26 Alb. L. 
 J. 271. 
 
 Alalama. — Tillman v. Reynolds, 48 
 Ala. 365. 
 
 Iowa. — Foss V. Cobler, 105 la. 728, 
 75 N. W. 516. 
 
 Nebraska. — Cones v. Brooks, 60 Neb. 
 698, 84 N. W. 85. 
 
 New York. — In re Klein, 101 N. Y. 
 S. 663. 
 
 Tennessee. — Brown v. Bigley, 3 
 Tenn. Ch 621; McDonald v. Charles- 
 ton, C. & C. E. Co., 93 Tenn. 281, 24 S. 
 W. 252. 
 
 Texas. — Thomson v. Findlater Hard- 
 ware Co., 156 S. W. 301. 
 
 Washington. — Gottstein v. Harring- 
 ton, 25 Wash. 508, 65 Pac. 753. 
 
 Proceedings by Client to Question 
 Lien. — The right to entertain a sum- 
 mary proceeding to compel the return 
 of books and papers held by an attor- 
 
 ney under a claim of a lien for serv- 
 ices depends on the relationship of 
 attorney and client; and where a pe- 
 tition for such an order negatives the 
 employment of the respondent as the 
 attorney of the petitioner, there is no 
 right shown to maintain the proceed- 
 ing. In re Niagara, L. & 0. Power 
 Co., 203 N. Y. 493, Ann. Cas. 1913B 
 234, 97 N. E. 33, 38 L.R.A.(N.S.) 
 207. 
 
 '2 United States. — ^Leszynsky v. Mer- 
 ritt, 9 Fed. 688; Davis v. Davis, 90 
 Fed. 791. 
 
 Alaska. — Nodine v. Hannum, 1 
 Alaska 302. 
 
 New York. — Greenfield v. New York, 
 28 Hun 320 ; Prentiss v. Livingston, 60 
 
 How. Pr. 380 ; In re H , 87 N. 
 
 Y. 521, 63 How. Pr. 152; In re Ed- 
 ward Ney Co., 114 App. Div. 467, 99 
 N. Y. S. 982; Matter of Stenton, 5S 
 Misc. 515, 105 N. Y. S. 295. 
 
 8Leszynsky v. Merritt, 9 Fed. 688. 
 
 * In re Eobinson's Estate, 59 Misc. 
 323, 112 N. Y. S. 280. 
 
 eConsol. Laws 1909, c. 30, § 475. 
 In re Farrirgton, 146 App. Div. 590, 
 131 N. Y. S. 312. 
 
CHAPTEE XXVII, 
 
 PROSECUTING ATTORNEYS. 
 
 In General. 
 
 685. Prosecuting Officers in England. 
 
 686. Prosecuting Officers in United States. 
 
 687. Prosecuting Attorneys as Officers. 
 
 688. As Quasi Judicial Officers. 
 
 Election or Appointment, Eligibility, Tenure and Qualification, 
 
 689. Election or Appointment. 
 
 690. Appointment to Fill Vacancy. 
 
 691. Eligibility. 
 
 692. Qualification Generally. 
 
 693. Qualification as to Trial of Particular Cause. 
 
 694. Tenure. 
 
 Deputies, Substitutes and Assistants. 
 
 695. Deputies. 
 
 696. Substitutes. 
 
 697. Eight to Appoint Assistants for Trial Purposes. 
 
 698. Who May Appoint Assistants. 
 
 699. Who May Be Assistants. 
 
 700. Former Employment as Disqualification. 
 
 701. Nonresidence as Disqualification. 
 
 702. Eligibility of Private Counsel. 
 
 703. Number of Assistants and Time of Appointment. 
 
 704. Qualification Generally and Tenure. 
 
 Power, Duty, Liability and Compensation, 
 
 705. Duties Generally. 
 
 706. Criminal Prosecutions. 
 
 707. Proceedings before Grand Jury. 
 
 708. Civil Actions. 
 
 709. Authority outside of District. 
 
 710. Authority to Incur Expense. 
 
 711. Liability. 
 
 1088 
 
§§ 685, 686] PROSECUTING ATTORNEYS, 1089 
 
 Conduct of Trials. 
 
 § 712. Prosecutor Must Act Impartially. 
 
 713. Eight of Deputies, Substitutes and Assistants to Conduct Trial. 
 
 714. Eight of Private Counsel to Conduct Trial. 
 
 Compensation. 
 
 715. Generally. 
 
 716. Compensation of Deputies, Substitutes and Assistants. 
 
 Bemoval. 
 
 717. Generally.' 
 
 718. Grounds for Eemoval. 
 
 In General. 
 
 § 685. Prosecuting Officers in England. — The prosecution 
 of offenses in England is conducted under the supervision of the di- 
 rector of public prosecutions, who is appointed by the secretary of 
 state. The appointee must be a barrister or solicitor of at least 
 ten years' standing, and an assistant director must be a barrister 
 or solicitor of at least seven years' standing.* It is the duty of 
 the director of public prosecutions, under the supervision of the 
 attorney-general, to undertake and carry on criminal proceedings 
 generally, and to advise the officials who are concerned therein.^ 
 The attorney-general also exercises certain functions in relation 
 to criminal prosecutions, particularly those concerning the House 
 of Lords and the House of Commons.' The rights of private 
 prosecutors, however, are not affected in England, and anyone 
 may institute and carry on a prosecution ; but the director of pub- 
 lic prosecutions may undertake the conduct of the proceeding at 
 any stage, should he desire to do so.* 
 
 § 686. Prosecuting Officers in United States. ^- Criminal 
 prosecutions in the United States are carried on in the name of 
 the government, and conducted, in most jurisdictions at least, by 
 
 1 7 Halsbury's Laws of England, 3 gee infra, § 720. 
 
 p. 78. * Alexander's Adm. of Justice, 
 
 8 9 Halsbury's Laws of England, pp. 131, 132. 
 p. 292. 
 
 Attys. at L. Vol. II.— 69. 
 
1090 PEOSECUTING ATTORNEYS. [§ 687 
 
 counsel who are elected by the people, or duly appointed by con- 
 stituted authority, for that purpose. The prosecuting attorney, in 
 this country, is frequently designated and spoken of as the "dis- 
 trict attorney," and in some instances he is known as the "county 
 attorney." But, irrespective of the particular title by which he 
 may be known in the various communities, he is an officer set apart 
 to conduct the public business,* usually of a criminal nature,* al- 
 though in some instances certain duties of a civil character may be 
 imposed upon him.' Of course, the legislature has the power to 
 provijde for the commencement of criminal prosecutions by offi- 
 cers other than state's attorneys.' 
 
 § 687. Prosecuting Attorneys as Officers. — A prosecuting 
 attorney, notwithstanding his official position, still remains an offi- 
 cer of the court as an attorney at law, and, as such, is amenable 
 to the authority of the court over attorneys generally, irrespective 
 of whether or not they occupy official positions.® In his official 
 capacity a prosecuting attorney is a public officer because he rep- 
 resents the sovereign power of the government in whose name, and 
 by whose authority, he acts." Thus, it has been held that a fed- 
 eral district attorney is the regular officer of the government, and 
 has charge of all its legal proceedings within his district, subject 
 only to the general direction and supervision of the attorney gen- 
 eral.^^ Under the constitution and laws of several of the states a 
 district attorney is deemed to be a state officer, for the reason that 
 his duties are of a public and general nature, in which the state is 
 
 i Colorado.— People v. Gibson, 53 sin re Snell, 58 Vt. 207, 1 Atl. 
 
 Colo. 231, 125 Pac. 531. 566. 
 
 Indiana. — State v. Morrison, 64 Ind. 9 See State v. Henning, 33 Ind. 189. 
 
 141. See also Dodd v. Sweetser, 14 m Fleming v. Hanee, 153 Cal. 162, 
 
 Ind. 292 ; State v. Tucker, 46 Ind. 355. 94 Pae. 620. 
 
 Midhigaru. — People v. May, 3 Mich. H San Francisco v. U. S., 4 Sawy. 
 
 598. * 553, 21 Fed. Cas. No. 12,316. But see 
 
 ffeuada.— State v. Salge, 2 Nev. 321. Fifth Nat. Bank v. Long, 7 Bias. 502, 
 
 Washington. — ^Spokane County v. 9 Fed. Cas. No. 4,780, wherein it was 
 
 Allen, 9 Wash. 229, 37 Pac. 428, 43 held that the district attorney is not 
 
 Am Rt. Eep. 830. so far an officer of the federal circuit 
 
 6 See infra, § 706. court that he may be compelled to 
 
 7 The local statutes must be con- enter an appearance for the United 
 suited in this respect. States. 
 
§§ 688, 689] PEOSECUTIJSTG ATTORNEYS. 1091 
 
 interested.** In other states lie is deemed to be a county officer ; ^ 
 thus, it has been held in Pennsylvania that the district attorney 
 must be provided with a suitable room for his office in the county 
 building free of charge, and that the commissioners of any county 
 can be compelled to provide such room.** It is evident, of course, 
 that a prosecuting attorney may be both a state and county officer 
 for certain purposes ; matters of this character, however, can only 
 be satisfactorily determined from an examination of the local 
 laws. 
 
 § 688. As Quasi Judicial Officers. — It is generally conceded 
 that a prosecuting attorney is a quasi-judicial officer,*^ and that, 
 as such, he must act impartially, as well in refraining from prose- 
 cuting as in prosecuting. He must guard the interests of public 
 justice in behalf of all concerned, and he must not become en- 
 tangled with private interests or grievances in any way connected 
 with the prosecutions which he may conduct.*^ 
 
 Election or Appointment, Eligibility, Tenure and Qualification. 
 
 § 689. Election or Appointment. — The office of prosecuting 
 attorney is created by legislation," and the incumbent thereof is 
 usually elected by the people in the manner provided for the elec- 
 tion of other officers who are so chosen.*' In some jurisdictions, 
 
 12 Griffin v. Rhoton, 85 Ark. 89, 107 Michigan.— Peo-ple v. Bemis, 51 
 S. W. 380; State v. Romero, (K. M.) Mich. 422, 16 N. W. 794. 
 
 125 Pac. 617. , Kew Mexico. — State v. Romero, 125 
 
 13 State V. Kovolosky, 92 la. 498, Pac. 617. 
 
 61 N. W. 223 ; Clark v. Tracy, 95 la. Pennsylvania. — Com. v. Bubnis, 197 
 
 410, 64 N. W. 290; Graham v. Stein, Pa. St. 542, 47 Atl. 748. 
 
 4 Ohio Cir. Dec. 140, 18 Ohio Cir. Ct. 16 See infra, §§ 705, 712. 
 
 770. "Ex p. Luslc, 82 Ala. 519, 2 So. 
 
 liNothstein v. Carbon County, 17 140; State v. Butler, 105 Me. 91, 18 
 
 Pa. Co. Ct. 206, 5 Pa. Dist. Ct. 69 Ann. Cas. 484, 73 Atl. 560, 24 L.R.A. 
 
 (construing Act Apr. 15, 1834, and (N.S.) 744. 
 
 Art. 14, § 1, of the constitution). 18 Ex p. Lusk, 82 Ala. 519, 2 So. 
 
 ^^ Arkansas. — Holder v. State, 58 140; People v. Brown, 16 Cal. 441; 
 
 Ark. 473, 25 S. W. 279. State v. Saline County, 60 Neb. 275, 83 
 
 Indiana.— St3i.te v. Henning, 33 Ind. N. W. 70 ; State v. Beal, 60 Ohio St. 
 
 189. 208, 54 N. E. 84. 
 
1092 PEOSECUTING ATTOKNEYS. [§ 690 
 
 and for certain purposes, it is provided that a prosecuting oiEcer 
 may be appointed by a particular court," or by the attorney gen- 
 eral,^" or by the governor of the state ; * and the legislature usu- 
 ally provides for the filling of offices created by the establishment 
 or division of judicial districts.* Thus, it is provided that federal 
 "district attorneys shall be appointed for a term of four years, 
 and their commissions shall cease and expire at the expiration of 
 four years from their respective dates." ' It is not doubted, of 
 course, that the court may appoint an attorney to prosecute a 
 criminal case which is pending before it even in the absence of 
 statute,* as, for instance, it does for the defense of indigent prison- 
 ers ; ^ but where a statutory method of election or appointment is 
 prescribed, that course must be pursued.* The appointment of 
 deputies, assistants, or substitutes, will be considered later.' 
 
 § 690. Appointment to Fill Vacancy. — The filling of va- 
 cancies in the oifice of prosecuting attorney is usually provided for 
 by legislation.* As a general rule, the court is empowered to fill 
 such vacancies ; ' but in many instances it is provided that a va- 
 
 19 See State I). Gilbert, 163 Mo. App. 8 u. S. Rev. Stat., § 769 (4 Fed. 
 679, 147 S. W. 505; People v. Albany Stat. Annot. 71). 
 
 Common Pleas, 19 Wend. (N. Y.) 27. « Tesh v. Com., 4 Dana (Ky.) 522. 
 
 20 State V. Nield, 4 Kan. App. 626, s gee supra, § 87. 
 
 45 Pac. 623 ; Com. v. Havrilla, 38 Pa. 6 Sayles v. Genesee Circuit Judge, 82 
 
 Super. Ct. 292. Mich. 84, 46 N. W. 29. 
 
 1 State V. Butler, 105 Me. 91, 18 7 See infra, §§ 695-704. 
 
 Ann. Cas. 484, 73 Atl. 560, 24 L.R.A. a state v. Saline County, 60 Neb. 
 
 (N-S.) 744. 275, 83 N. W. 70. 
 
 SOoiorodo.-People v. Annis, 10 9 c/ni^rf Stotes.-U. S. Rev. Stat., 
 
 Colo. 53, 14 Pac. 52. § 793 (4 Fed. Stat. Annot. 72). See 
 
 Ind%ana. — State v. Peterson, 74 Ind. 
 
 also In re Farrow, 3 Fed. 112, 4 Woods 
 491. 
 Kansas. — State v. Mechem, 31 Kan. 
 
 174; Elam v. State, 75 Ind. 518. 
 
 Kansas. — State v. Meek, 86 Kan. 
 576, 120 Pac. 555. 
 
 Kentucky.-Ad!,mB v. Roberts, 119 ^35, 2 Pac. 816; State v. Meek, 86 
 
 Ky. 364, 83 S. W. 1035, 26 Ky. L. Rep. 1^^"- S'^^' ^^0 Pac. 555. 
 
 1271; Watkins?;. Snyder, 148 Ky. 733, Massachusetts.— Com. v. King, 8 
 
 147 S. W. 899 ; McCreary v. Fields, Gray 501. 
 
 148 Ky. 730, 147 S. W. 901. Ohio. — In re Prosecuting Attorney, 
 North Carolina.— McCaW v. Card- 2 Ohio Dec. (Reprint) 602, 2 West. 
 
 ner, 125 N. C. 238, 34 S. E. 434. L. Month. 147. 
 
§ 691] PEOSECUTING ATTOKNEYS. 1093 
 
 cancy in the office of prosecutiiig attorney may be filled by the 
 county authorities,^" or by the governor,*' and in some instances 
 the governor can only make such appointment with the consent of 
 the legislature.'^ 
 
 The word "vacancy," as applied to an office, has no 
 technical meaning. An office is not vacant so long as it is sup- 
 plied in the manner provided by law with an incumbent who is 
 legally qualified to exercise the power and perform the duties 
 which pertain to it; and, conversely, it is vacant in the eye of the 
 law whenever it is unoccupied by a legally qualified incumbent,^ 
 who has a lawful right to continue therein until the happening of 
 some future event.'* A vacancy will be deemed to have occurred 
 where the prosecuting officer is unable, or neglects, or refuses to 
 perform his duties, or where it is improper for him to act ; '* but 
 a vacancy does not occur merely because the prosecuting officer is 
 absent from the district ; '° and where a prosecuting officer has the 
 legal right to hold over until his successor has been elected, and 
 he does so hold over, the office is not vacant. '° 
 
 § 691. Eligibility. — As the title of the office implies, a prose- 
 cuting attorney must be a lawyer, duly licensed and admitted to 
 practice," and in good standing ; one who has been disbarred may 
 not hold the office." Under a constitutional provision to the ef- 
 
 Pennsylvania. — Com. v. McHale, 97 16 Kouns v. Draper, 43 Mo. 225. 
 
 Pa. St. 397, 39 Am. Rep. 808. 16 Territory v. Mann, 16 N. M. 744, 
 
 10 People V. Brown, 16 Cal. 441; 120 Pac. 313. 
 
 State V. Walker, 30 Neb. 501, 46 N. W. " People v. Hallett, 1 Colo, 352 ; 
 
 648; State v. Rankin, 33 Neb. 266, 49 Hanson v. Grattan, 84 Kan. 843, 115 
 
 N. W. 1121; State v. Whitney, 9 Pac. 646, 34 L.R.A.(N.S.) 240; Peo- 
 
 Wash. 377, 37 Pac. 473. pie v. May, 3 Mich. 598; State v. Rus- 
 
 11 Simonton v. State, 44 Fla. 289, 31 sell, 83 Wis. 330, 53 N. W. 441. A 
 So. 821 ; Walsh v. Knickerbocker, 18 woman who was duly admitted to the 
 La. Ann. 180 ; State v. Garrett, 29 La. bar has been held to be ineligible to 
 Ann. 637 ; State v. Barrow, 30 La. Ann. the office of prosecuting attorney on 
 657; State v. Davis, 44 Mo. 129. the ground that she was not an elec- 
 
 12 Territory v. Mann, 16 N. M. 744, tor. Atty.-Gen. v. Abbott, 121 Mich. 
 120 Pac. 313. 540, 80 N. W. 372, 47 L.R.A. 92. 
 
 IS Territory v. Mann, 16 N. M. 744, is Brown v. Woods, 2 Okla. 601, 39 
 
 120 Pac. 313. Pac. 473; Danforth v. Egan, 23 S. D. 
 
 14 Com. V. McHale, 97 Pa. St. 397, 39 43, 20 Ann. Cas. 418, 119 N. W. 1021, 
 
 Am. Rep. 808. 139 Am. St. Rep. 1030. 
 
1094 PEOSECUTING ATTOKNEYS. [§§ 692, 693 
 
 feet that a prosecuting officer must be learned in the law, it has 
 been held that one admitted to practice in a sister state may show 
 that fact as proof of his qualification.*® So, it is usually provided 
 that a prosecuting attorney must reside in the district which he is 
 to serve.*" It would seem, however, that the fact that a prosecut- 
 ing attorney was an unlicensed person, or a nonresident of the 
 district, would not invalidate his official acts while occupying the 
 office.* 
 
 § 692. Qualification Generally. — After he has been elected, 
 it is incumbent upon the prosecuting officer, as, indeed, it is in the 
 case of many other officers, to comply with all requirements which 
 are necessary to qualify him for the office ; these, as a rule, are the 
 filing of his certificate of election,* and the taking of an oath of 
 office.* In some jurisdictions prosecuting attorneys are required 
 to file a bond ; * but a mere irregularity in the filing or approval 
 of a bond is not fatal, especially where it appears that the prose- 
 cuting attorney had entered upon and performed his duties with- 
 out objection for a considerable time.° 
 
 § 693. Qualification as to Trial of Particular Cause. — 
 
 A prosecuting attorney may be disqualified as to a particular case 
 for various reasons; thus, such disqualification may result from 
 the fact of his personal interest therein/ or because of his relation 
 
 19 Howard V. Burns, 14 S. D. 383, 85 1 U. S. v. Mitcliell, 136 Fed. 896; 
 N. W. 920. State v. Smith, 50 Kan. 69, 31 Pac. 
 
 20 State V. Johnston, 101 Ind. 223; 784. 
 
 Territory v. Smith, 3 Minn. 240, 74 2 State v. Colvig, 15 Ore. 57, 13 Pae. 
 
 Am. Deo. 749. 639. 
 
 In creating a new district, the 8 U. S. Rev. Stat., § 769 (4 Fed. 
 
 legislature must disturb existing Stat. Annot. 71). 
 
 districts; and when it cuts off. * Glass v. Hutchinson, 55 Kan. 162, 
 
 a county in which a commonwealth's 40 Pac. 287. 
 
 attorney resides, he must in a reason- ^ Howard v. Burns, 14 S. D. 382, 85 
 
 able time change his residence, and N. W. 920. 
 
 take up a residence in the district * People v. Landes, 151 111. App. 181. 
 
 which he is to serve, if he elects to But see King v. State, 43 Fla. 211, 
 
 continue as an officer thereof. Mc- 31 So. 254, wherein it was held that 
 
 Crear v. Fields, 148 Ky. 730, 147 S. a prosecuting attorney was not dis- 
 
 W. 901. qualified because he was also the re- 
 
§ 693] PBOSECUTING ATTOENEYS. 1095 
 
 to the parties," or because of a former employment by the accused, 
 or, in some cases, by the prosecuting witness.' It has been held 
 repeatedly that an attorney who has once been made the recipient 
 of the confidence of a client concerning a certain subject-matter, 
 is thereafter disqualified from acting for any other party adverse- 
 ly interested in such subject-matter;' and this applies to district 
 attorneys as well as to other lawyers."* Nor is it necessary that 
 the prosecuting attorney be guilty of an attempt to betray 
 professional confidence ; it is enough to disqualify him that he has 
 placed himself in a position which leaves him open to such a 
 charge.** Of course, disqualification may arise because of serv- 
 ices rendered by the prosecuting attorney in a civil case as well as 
 in another criminal case, providing, of course, that, because of such 
 services, he gained a confidential knowledge of facts which are 
 subsequently made the basis of a criminal prosecution against his 
 former client; *' but he will not be disqualified merely because of 
 an unsuccessful eifort to employ him.*' In some states it is ex- 
 pressly provided that a prosecuting attorney who has represented 
 a plaintiff in replevin, is disqualified from thereafter prosecuting 
 the defendant in replevin for larceny on the same facts.** Statu- 
 
 tained counsel for private parties in during his term of oflSce, the defend- 
 
 a particular case which, as prosecutor, ant was indicted for a similar offense, 
 
 it became his duty to try. There was Bellison V. Apland, 115 la. 599, 89 
 
 no improper conduct alleged in that N. W. 22. 
 
 case, however, nor was it charged that n Roberta v. People, 11 Colo. 213, 
 
 the state's attorney took any unfair or 17 Pac. 637; State v. Rocker, 130 la. 
 
 undue advantage of the defendant. 239, 106 N. W. 645. 
 
 7 State V. Boasberg, 124 La. 289, 50 12 State v. Rocker, 130 la. 239, 106 
 So. 162 ; People v. Cline, 44 Mich. 290, N. W. 645. 
 
 6 N. W. 671. 1' People v. Summers, 115 Mich. 537, 
 
 8 State V. Boasberg, 124 La. 289, 50 73 N. W. 818, 4 Detroit Leg. N. 957. 
 So. 162 ; State v. Sweeney, 93 Mo. 38, " People v. Hillhouae, 80 Mich. 580, 
 5 S. W. 614; Dodd v. State, 5 Okla. 45 N. W. 484. 
 
 Crim. 513, 115 Pac. 632. But a district attorney who con- 
 
 »See swpra, §§ 174-182. ducted proceedings before an examin- 
 
 10 Gaulden v. State, 11 Ga. 47 ; State ing magistrate against a person 
 
 V. Rocker, 130 la. 239, 106 N. W. 645. charged with having stolen certain 
 
 But a prosecuting officer is not pro- wheat, and also appeared for the de- 
 
 hibited from representing the plaintiff fense in an action of replevin brought 
 
 in an action for damages caused by an by the accused against the officer who 
 
 illegal sale of liquor merely because, had seized the wheat, is not disquali- 
 
1096 
 
 PROSECUTING ATTORNEYS. 
 
 [§ 694 
 
 tory grounds of disqualification are not, as a rule at least, exclu- 
 sive, and the court may declare a prosecuting attorney disqualified 
 with respect to a particular case, on grounds of public policy, for 
 other good and sufficient reasons ; ^* and if a district attorney finds 
 that he cannot discharge the duties required of him as an officer in 
 a particular case, and the court believes that his grounds are well 
 founded, there is no good reason why he may not be represented 
 by another.^® The qualification of assistants to the district attor- 
 ney will be considered later." 
 
 § 694. Tenure. — Under some old statutes it seems prosecut- 
 ing attorneys were appointed during good behavior,*' and at the 
 pleasure of the court ; " but at the present day the tenure of office 
 of prosecuting attorneys, in nearly all instances, is fixed by both 
 statutory ^^ and constitutional provisions ; * and while the legisla- 
 ture may regulate the office of prosecuting attorney, it cannot 
 abolish it ; ' excepting, of course, where the constitution provides 
 
 fied from assisting a new district 
 attorney upon a subsequent trial of 
 the criminal action against said ac- 
 cused. Jackson v. State, 81 Wis. 127, 
 51 N. W. 89. 
 
 Instate V. Boasberg, 124 La. 289, 
 50 So. 162. 
 
 16 State V. Boasberg, 124 La. 289, 50 
 So. 162. 
 
 17 See infra, % 699. 
 
 "Bruce v. Fox, 1 Dana (Ky.) 447. 
 
 19 Ex p. Bouldin, 6 Leigh ( Va.) 639. 
 
 i^ Idaho. — Hays v. Hays, 5 Idaho 
 154, 47 Pac. 732. 
 
 Indiana. — Barkwell v. State, 4 Ind. 
 179; Hench v. State, 72 Ind. 297; 
 Elam V. State, 75 Ind. 518. 
 
 Kansas. — Craft v. State, 3 Kan. 450. 
 
 Massachusetts. — In re Opinion of 
 Justices, 3 Gray 601. 
 
 Missouri. — State v. Davis, 44 Mo. 
 129. 
 
 Nebraska. — State v. Saline County, 
 60 Neb. 275, 83 N. W. 70. 
 
 Nevada.— State v. Wells, 8 Nev. 105. 
 
 New York. — People v. Palmer, 154 
 N. Y. 133, 47 N. E. 1084, affirming 21 
 App. Div. 101, 47 N. Y. S. 403. 
 
 South Carolina. — State v. Jeter, 1 
 McCord L. 234. 
 
 Tennessee. — State v. Trewhitt, 113 
 Tenn. 561, 82 S. W. 480. 
 
 Texas. — Upshaw v. Booth, 37 Tex. 
 125. 
 
 1 Cropsey v. Henderson, 63 Ind. 268 ; 
 Moser v. Long, 64 Ind. 189; Fant v. 
 Gibbs, 54 Miss. 396; Com. v. McHale, 
 97 Pa. St. 397, 39 Am. Eep. 808 ; State 
 V. Trewhitt, 113 Tenn. 561, 82 S. W. 
 480. 
 
 ^Indiana. — Moser v. Long, 64 Ind. 
 189; State v. Johnston, 101 Ind. 223. 
 
 Kentucky. — Adams v. Roberts, 119 
 Ky. 364, 83 S. W. 1035, 26 Ky. L. Rep. 
 127L 
 
 Louisiana. — State v. Parlange, 26 
 La. Ann. 548. 
 
 Oregon. — State v. Walton, 53 Ore. 
 
695] 
 
 PROSECUTING ATTORNEYS. 
 
 1097 
 
 otherwise.' Ifor will the tenure of office be affected by a mistake 
 or error in the commission.* 
 
 It has been held that U. S. Rev. Stat., § 769, which provides 
 that "district attorneys shall be appointed for a term of four 
 years, and their commissions shall cease and expire at the expira- 
 tion of four years from their respective dates," ° is one of limita- 
 tion, and not of 'grant, and under the settled construction of the 
 Constitution the President has the power to remove an incumbent 
 before the expiration of the term so limited. ° 
 
 Deputies, Substitutes and Assistants. 
 
 § 695.. Deputies. — It is well settled that prosecuting attor- 
 neys may, and usually do, act by deputy.'' The right to appoint 
 deputies, however, is usually provided for by the legislature ; ' the 
 power of appointment being given to the prosecuting attorney him- 
 self,* the attorney -general,^" the governor,'' certain county officers,'^ 
 
 557, 99 Pae. 431, rehearing denied, 53 
 Ore. 566, 101 Pac. 389, 102 Pac. 173. 
 
 Pennsylvania. — Com. v. Havrilla, 38 
 Pa. Super. Ct. 292. 
 
 ' The Ohlahoma Constitution cre- 
 ates the oflSce of county attorney sub- 
 ject to change by the legislature, and 
 it is held that the office, so created, 
 may be abrogated, and its duties en- 
 larged, diminished, or transferred, as 
 the legislature may see fit. Childs v. 
 State, 4 Okla. Crim. 474, 113 Pac. 545, 
 33 L.R.A.(N.S.) 563. 
 
 *Moser v. Long, 64 Ind. 189. See 
 also Hench v. State, 72 Ind. 297. 
 
 6 4 Fed. Stat. Ann. 71. 
 
 6 Parsons v. U. S., 167 U. S. 324, 17 
 S. Ct. 880, 42 U. S. (L. ed.) 185. 
 
 7 Nesbit V. People, 19 Colo. 441, 36 
 Pac. 221; State V. Anderson, 29 La. 
 Ann. 774; State v. Mack, 45 La. Ann. 
 1155, 14 So. 141; State v. Bezou, 48 
 La. Ann. 1369, 20 So. 892; State v. 
 Britton, 131 La. 877, 60 So. 379; Par- 
 
 ker V. May, 5 Cush. (Mass.) 336; 
 State V. Harris, 12 Nev. 414. 
 
 8 Elliott V. Jackson County, 194 Mo. 
 532, 92 S. W. 480; Storey v. Murphy, 
 9 N. D. 115, 81 N. W. 23; State v. 
 Walton, 53 Ore. 557, 99 Pac. 431, re- 
 hearing denied 53 Ore. 566, 101 Pac. 
 389, 102 Pac. 173; State v. Marshall 
 County, 14 S. D. 149, 84 N. W. 775. 
 
 9 McKay v. State, 90 Neb. 63, Ann. 
 Cas 1913B 1034, 132 N. W. 741, 39 
 L.E.A.(N.S.) 714; Mahaffey v. Terri- 
 tory, 11 Okla. 213, 66 Pac. 342. 
 
 10 U. S. V. Twining, 132 Fed. 129; 
 State V. Jepson, 76 Kan. 644, 92 Pac. 
 600; State v. Russell,' 26 La. Ann. 68; 
 State V. Boasberg, 124 La. 289, 50 So. 
 162. 
 
 11 James v. Helm, 329 Ky. 323, 111 
 S. W. 335, 33 Ky. L. Rep. 871. 
 
 12 California, — Freeman v. Barnum, 
 131 Cal. 386, 63 Pac. 691, 82 Am. St. 
 Rep. 355. 
 
 Colorado. — McMullin v. Montrose 
 County, 29 Colo. 478, 68 Pac. 779. 
 
1098 PEOSECUTING ATTOKNEYS. [§ 696 
 
 or to the court. ^* But the prosecuting attorney can appoint 
 deputies only in the manner provided by law,^* especially where 
 it involves the delegation of his official discretion and responsibil- 
 ity.** Deputy and assistant prosecuting attorneys are frequently 
 appointed for special purposes under legislative authority,*^ but 
 usually they are provided for as assistants to the prosecuting attor- 
 ney in the discharge of his various duties, and 'are clothed with 
 the necessary powers and privileges for that purpose," and their 
 acts must be regarded as if done by the prosecuting attorney in 
 person. '* Thus, federal assistant district attorneys are deemed to 
 be officers of the United States court for their respective districts.*' 
 
 § 696. Substitutes. — While prosecuting attorneys are the 
 proper officers, within their respective districts, to prosecute crimi- 
 nals, courts and legislatures have long recognized the existence of 
 conditions which prevent these officers from performing such duties 
 in all cases, and the necessity of temporarily appointing a substi- 
 tute to conduct such proceedings ; therefore, authority exists in all 
 jurisdictions whereby such substitutes may be appointed, and em- 
 powered to act, in the place and stead of the regularly constituted 
 officers when, for any reason, they cannot act themselves, as, for 
 instance, where they are absent, ill, or disqualified, or where they 
 
 loiva. — Tatlook v. Louisa County, torney himself is not a legally eon- 
 
 46 la. 138. stituted assistant county attorney. 
 
 Michigan. — People v. Bemis, 51 McGarrah v. State, (Okla.) 133 Pac. 
 
 Mich. 422, 16 N. W. 794. 260. 
 
 'North Dakota. — State v. Tough, 12 15 Engle v. Chipman, 51 Midi. 524, 
 
 N. D. 425, 96 N. W. 1025. 16 N. W. 886; McGarrah v. State, 
 
 13 See infra, §§ 696-698. (Okla.) 133 Pac. 260; White v. State, 
 
 l4Tatlock V. Louisa County, 46 la. (Okla.) 133 Pac. 263. 
 
 138 ; Foster v. Clinton County, 51 la. l^ Gray v. District Court of Ninth 
 
 541, 2 N. W. 207; In re Gillespie, 3 Judicial Dist., 42 Colo. 298, 94 Pac. 
 
 Yerg. (Tenn.) 325. 287; In re Gilson, 34 Kan. 641, 9 Pac. 
 
 Under Rev. Laws Okla. 1910, 763; State «;. Nield, 4 Kan. App. 626, 
 
 § 1563, authorizing county attorneys 45 Pac. 623. 
 
 with the assent of the county commis- ^ People v. Magallones, 15 Gal. 
 
 sioners to appoint assistants, not ex- 426; Com. v. Grier, 22 Pittsb. Leg. 
 
 ceeding four in number, in counties J. N. S. (Pa.) 243. 
 
 having over 60,000 population, at spe- 1' People v. Magallones, 15 Cal. 426. 
 
 cified salaries, an additional assistant W In re Leaken, 137 Fed. 680. 
 appointed and paid by the county at- 
 
§ 696] 
 
 PEOSECUTING ATTORNEYS. 
 
 1099 
 
 refuse or neglect to perform their duties.^" In most instances 
 this power of substitution is regulated by statute, but it is well 
 settled that, even in the absence of statute, such power is inherent 
 in the court,^ although where the matter is regulated by statute, 
 substitution should only be made for a statutory reason.^ The 
 
 20 Ex p. Digs, 50 Ala. 78; Joyner v. 
 State, 78 Ala. 448. 
 
 California. — Toland v. Ventura 
 County, 135 Cal. 412, 67 Pao. 498. 
 
 Colorado. — Roberts v. People, 11 
 Colo. 213, 17 Pao. 637. 
 
 Florida. — King v. State, 43 Fla. 211, 
 31 So. 254. 
 
 Georgia. — Mitchell v. State, 22 Ga. 
 211, 68 Am. Deo. 493 ; Horton v. State, 
 11 Ga. App. 33, 74 S. E. 559. 
 
 /oico. — White v. Pollc County, 17 la. 
 413. 
 
 Louisiana. — State v. Jerry, 4 La. 
 Ann. 190; State v. Viaux, 8 La. Ann. 
 514; State v. Baas, 12 La. Ann. 862; 
 State V. Boudreaux, 14 La. Ann. 88; 
 State V. Johnson, 41 La. Ann. 1076, 6 
 So. 802; State v. Smith, 107 La. 129, 
 31 So. 693, 1014; State v. Britton, 131 
 La. 877, 60 So. 379; State v. Buhler, 
 132 La. 1065, 62 So. 145. 
 
 Minnesota. — State v. Borgstrom, 69 
 Minn. 508, 72 N. W. 799, 975. 
 
 Mississippi. — Keithler v. State, 10 
 Smedes & M. 192. 
 
 Missouri. — State v. Duncan, 116 Mo. 
 288, 22 S. W. 699 ; State v. Taylor, 93 
 Mo. App. 327, 67 S. W. 672. 
 
 Nebraska. — Gandy v. State, 27 Neb. 
 707, 43 N. W. 747, 44 N. W. 108; 
 Korth V. State, 46 Neb. 631, 65 N. W. 
 792 ; Spaulding v. State, 61 Neb. 289, 
 85 N. W. 80. 
 
 New York. — People v. Lytle, 7 App. 
 Dir. 553, 40 N. Y. S. 153. 
 
 Ohio. — In re Prosecuting Attorney, 
 2 Ohio Dec. (Reprint) 602, 4 West. 
 L. Month, 147. 
 
 Oklahoma. — Hyde v. Territory, 8 
 Okla. 69, 56 Pac. 851. 
 
 Pennsylvania. — Com. v. McHale, 97 
 Pa. St. 397, 39 Am. Rep. 808. 
 
 Tennessee. — Douglass v. State, 6 
 Yerg. 525; Wilson v. State, 8 Yerg. 
 509. 
 
 Texas. — State v. Johnson, 12 Tex. 
 231; Daniels v. State, 77 S. W. 215. 
 
 Wisconsin. — State v. Russell, 83 
 Wis. 330, 53 N. W. 441. 
 
 1 King V. State, 43 Fla. 211, 31 So. 
 254; Horton v. State, 11 Ga. App. 33, 
 74 S. E. 559 ; State v. Moxley, 102 Mo. 
 374, 14 S. W. 969, 15 S. W. 556; 
 State V. Duncan, 116 Mo. 288, 22 S. W. 
 699. 
 
 2 California. — Toland v. Ventura 
 County, 135 Cal. 412, 67 Pac. 498. 
 
 Idaho. — State v. Barber, 13 Idaho 
 65, 88 Pac. 418. 
 
 Kentucky. — Adams v. Com., 129 Ky. 
 255, 111 S. W. 348, 33 Ky. L. Rep. 
 779. 
 
 Missouri. — State v. Seibert, 130 Mo. 
 202, 32 S. W. 670. 
 
 Oklahoma. — Mahaffey v. Territory, 
 11 Okla. 213, 66 Pao. 342. 
 
 Tennessee. — Pippin v. State, 2 
 Sneed 43; Douglass v. State, 6 Yerg. 
 525; Hite v. State, 9 Yerg. 198. 
 
 Teaoas. — Harris County v. Stewart, 
 91 Tex. 133, 41 S. W. 650. 
 
 Compare the cases cited supra, 
 § 693, note 6, as to the disquali- 
 fication of prosecuting attorneys in 
 particular cases. 
 
1100 PEOSECUTING ATTORNEYS. [§ 697 
 
 fact that a prosecuting oiRcer cannot or will not perform the 
 duties of his office, should not be permitted to suspend the prose- 
 cution of crime ; and, were it otherwise, a failure of justice must 
 necessarily result in many cases ; * nor can one accused of crime 
 object to being prosecuted by an unofficial member of the bar 
 rather than by the prosecuting attorney.* In some jurisdictions 
 the appointment of a special or substitute attorney is provided 
 for where the prosecuting officer is guilty of misconduct, such as 
 being in collusion with the accused," or where he is involved in the 
 crime to be investigated.* The power of appointing a substitute 
 for the prosecuting attorney, however, is somewhat extraordinary, 
 and will only be exercised where the need of it is apparent.' But 
 when substitution has been made, the appointee is vested with all 
 the powers of the regularly elected officer in whose place he has 
 been appointed, unless the order of his appointment provides other- 
 wise.' 
 
 § 697. Right to Appoint Assistants for Trial Purposes. — 
 
 The people do not lose interest in the prosecution of criminals 
 when they elect an officer whose duty it is to prosecute them ; nor 
 do they surrender their right to employ all just and proper means 
 to see that the rights of the state are preserved; therefore, when 
 the exigencies of a case demand it, as when the public prosecutor 
 is inexperienced, or confronted by an array of able and talented 
 counsel, who appear for the defendant in a difficult or complicated 
 case, and the interests of the state demand that he have assistance, 
 
 3 Dukes V. State, H Ind. 557, 71 Am. In a proceeding to test the rights of 
 Dec. 370; State v. Reid, 113 La. 890, a person appointed district attorney 
 37 So. 866. pro tempore, by the district court of 
 
 4 State V. Bartlett, 105 Me. 212, 74 Texas, under Paach. Dig. art. 191, the 
 Atl. 18, 134 Am. Sit. Rep. 542, 24 state is not a proper party. State v. 
 L.E.A.{N.S.) 564; State «. Borgstrom, Manlove, 33 Tex. 798. 
 
 69 Minn. 508, 72 N. W. 799, 975. 8 State v. Smith, 107 La. 129, 31 So. 
 
 estate V. Smith, 8 Ohio Dec. (Re- 693, 1014; State v. Daspit, 129 La. 
 
 print) 136, 5 Cine. L. Bui. 881. 752, 56 So. 661; State v. Tough, 12 N. 
 
 6 People V. District Ct., 29 Colo. 5, D. 425, 96 N. W. 1025; Harris v. 
 66 Pac. 896. State, 100 Tenn. 287, 45 S. W. 438; 
 
 7 Com. V. Dawson, 3 Pa. Dist. Ot. Biemel v. State, 71 Wis. 444, 37 N. 
 603. W. 244. 
 
698] 
 
 PROSECUTING ATTOENEYS. 
 
 1101 
 
 such aid may be allowed.' !Nor do statutes declaring who shall be 
 charged with the duty of prosecuting persons charged with crime, 
 exclude the power of the court to appoint counsel from members 
 of the bar to assist in the prosecution.'" Indeed, this is an in- 
 herent power of the court, and one which is frequently exercised ; 
 otherwise the public interests might suffer.'' So the people, act- 
 ing through their duly constituted officers, may employ any li- 
 censed attorney to appear for them in a criminal prosecution, as 
 well as in other cases, unless, of course, it is forbidden by statute.'* 
 
 § 698. Who May Appoint Assistants. — As a general rule, 
 the appointment of assistants to aid the district attorney is a mat- 
 ter which rests within the sound discretion of the court." The 
 
 9Tull V. state, 99 Ind. 238; State 
 V. Whitworth, 26 Mont. 107, 66 Pac. 
 748; State v. O'Brien, 35 Mont. 482, 
 10 Ann. Cas. 1006, 90 Pac. 514; 
 Chambers v. State, 3 Humph. (Tenn.) 
 237; Temple v. State, (Tenn.) 155 S. 
 W. 388 ; McCue v. Com. 103 Va. 870, 
 49 S. E. 623. 
 
 "State V. Whitworth, 26 Mont. 
 107, 66 Pac. 748. 
 
 11 Hinsdale County v. Crump, 18 
 Colo. App. 59, 70 Pac. 159; TuU v. 
 State, 99 Ind. 238; State v. Bartlett, 
 55 Me. 200; State v. Orriek, 106 Mo. 
 Ill, 17 S. W. 176, 329. 
 
 12 People V. Bemis, 51 Mich. 422," 
 16 N. W. 794; People v. O'Neill, 107 
 Mich. 556, 65 N. W. 540; State v. 
 Coleman, 199 Mo. 112, 97 S. W. 574; 
 Ex p. Gillespie, 3 Yerg. (Tenn.) 325. 
 
 Com'pare Clay County v. McGregor, 
 171 Ind. 634, 17 Ann. Cas. 333, 87 N. 
 E. 1, wherein it was held that as pro- 
 vision is made by statute for the elec- 
 tion of prosecuting attorneys, who 
 are authorized to appoint deputies to 
 assist in the discharge of their official 
 duties, and also for the appointment 
 by the court of an attorney to prose- 
 
 cute for the term in case of the ab- 
 sence of the prosecuting attorney, an 
 actual necessity for the appointment 
 by the court of an attorney to assist 
 the official prosecutor can scarcely be 
 said to exist in any case; and if it is 
 expedient and desirable that the state 
 should have the assistance of other 
 counsel in the conduct of an important 
 and difficult case, the duty of provid- 
 ing for such emergencies rests pri- 
 marily with the legislature. 
 
 13 United States. — Moreland v. Mar- 
 ion County, 1 N. Y. Wkly. Dig. 326, 
 17 Fed. Cas. No. 9,794. 
 
 Colorado. — Hinsdale County v. 
 Crump, 18 Colo. App. 59, 70 Pac. 159. 
 
 Indiana. — TuU v. State, 99 Ind. 
 238; Keyes v. State, 122 Ind. 527, 23 
 N. E. 1097. 
 
 Louisiana. — State v. Britton, 131 
 La. 877, 60 So. 379. 
 
 Maine. — State v. Bartlett, 55 Me. 
 200. 
 
 Massachusetts. — Com. v. Williams, 
 2 Cush. 582 ; Com. v. Knapp, 10 Pick. 
 477, 20 Am. Dec. 534; Com. v. King, 
 8 Gray 501. 
 
 Ohio. — State v. Franklin County 
 
1102 
 
 PROSECUTING ATTORNEYS. 
 
 [§ 699 
 
 court, however, usually acts only on the request of the prosecut- 
 ing attorney,^* and in some instances it appears that the appoint- 
 ment of assistants is to be made by the prosecuting attorney under 
 the direction and Avith the consent of the court. '^ But the court 
 will not appoint an assistant merely because the prosecuting at- 
 torney, the injured person, or his friends, request that such ap- 
 pointment be made, nor imless, in the opinion of the court, the 
 public interest requires such appointment.^* An appointment can- 
 not be made by a disqualified judge " or prosecuting attorney,^' 
 nor by a deputy prosecuting attorney." 
 
 § 699. Who May Be Assistants. — In appointing persons to 
 assist the prosecuting attorney in the trial of a cause, it is the duty 
 of the trial court to see that a proper selection is made in the in- 
 terest of the state, and for the promotion of justice.*' The ap- 
 
 Com'rs, 20 Ohio St. 421; Price v. 
 State, 35 Ohio St. 601. 
 
 South Dakota. — State v. Johnson, 
 24 S. D. 590, 124 N. W. 847. 
 
 Tennessee. — Ex parte Gillespie, 3 
 Yerg. 325. 
 
 Wisconsin. — Biemel v. State, 71 
 Wis. 444, 37 N. W. 244. 
 
 14 Com. V. Scott, 123 Mass. 222, 25 
 Am. Eep. 81 ; In re Prosecuting At- 
 torney, 2 Ohio Dec. (Reprint) 602, 4 
 West. L. Month. 147. 
 
 15 Florida. — Thalheim v. State, 38 
 Fla. 169, 20 So. 938. 
 
 Idaho. — People v. Biles, 2 Idaho 
 114, 6 Pac. 120. 
 
 Indiana. — Wood v. State, 92 Ind. 
 269; Shular v. State, 105 Ind. 289, 4 
 N. E. 870, 55 Am. Rep. 211. 
 
 Iowa. — Seaton v. Pollc County, 59 
 la. 626, 13 N. W. 725; State v. Cobley, 
 128 la. 114, 103 N. W. 99. 
 
 Michigan. — Sneed v. People, 38 
 Mich. 248; Ulrich v. People, 39 Mich. 
 245. 
 
 N elrasJca.— Bush v. State, 62 Neb. 
 128, 86 N. W. 1062; Johns v. State, 
 
 88 Neb. 145, 129 N. W. 247; McKay 
 V. State, 90 Neb. 63, Ann. Cas. 1913B 
 1034, 132 N. W. 741, 39 L.R.A.(N.S.) 
 714; Goldsberry v. State, 92 Neb. 211, 
 137 N. W. 1116. 
 
 New Jersey. — State v. Board of 
 Chosen Freeholders, 47 N. J. L. 417, 
 1 Atl. 701. 
 
 New York. — People v. NeflF, 191 N. 
 
 Y. 286, 84 N. E. 63, affirming 121 App. 
 
 Div. 44, 105 N. Y. S. 559; People v. 
 
 Coler, 35 Misc. 454, 16 N. Y. Crim. 23, 
 
 ^ 71 N. Y. S. 127. 
 
 Virginia. — Hopper v. Com., G Grat. 
 684. 
 
 16 Price V. State, 35 Ohio St. 601. 
 
 " Dodd V. State, 5 Okla. Crim. 513, 
 115 Pac. 632. 
 
 18 Hartgraves v. State, 5 Okla. Crim. 
 266, Ann. Cas. 1912D 180, 114 Pac. 
 343, 33 L.R.A.(N.S.) 568. 
 
 19 People V. Hurst, 41 Mich. 328, 1 
 N. W. 1027. 
 
 20 See Wiggins v. Com., 53 S. W. 
 649, 21 Ky. L. Rep. 939 ; People v. Et- 
 ter, 72 Mich. 175, 40 N. W. 241 ; Peo- 
 ple V. Perriman, 72 Mich. 184, 40 N. 
 
§ B99] PEOSECUTING ATTORNEYS. 1103 
 
 pointee must be a member of tbe bar,' unbiased in his representa- 
 tion of tbe state, and as ready and astute in protecting the ac- 
 cused if believed to be innocent, as in his labor for conviction if 
 he believes him to be guilty ; * and in several jurisdictions it is re- 
 quired that such assistants shall not be employed or paid by pri- 
 vate persons.® It has been held that a lieutenant governor may be 
 appointed as prosecuting attorney, notwithstanding the possibility 
 of his succession to the ofBce of governor, and his being called 
 upon, in that capacity, to exercise the pardoning power.* So, un- 
 less prohibited by statute, a law partner of the prosecuting attor- 
 ney may be appointed to assist him ; ° but in some jurisdictions law 
 partners of district attorneys are forbidden to practice in the 
 criminal courts.* Nor can it be objectionable, excepting in the 
 mind of the accused, that an appointee has unusual ability in so 
 presenting facts and circumstances to the court and jury that the 
 truth may be made to appear.'' Ifor is it a sufficient ground of 
 objection as against an assistant prosecuting attorney that he is a 
 member of the legislature,' or that he entertains bias because of 
 having been involved in political and legal controversies with the 
 defendant's brother,' or because he is counsel in a civil action 
 against the accused for the recovery of damages for the acts upon 
 which the criminal prosecution is based,^" or because he is preju- 
 diced against the liquor traffic and the defendant is charged with 
 a violation of the liquor laws,^' or because he has formed an opinion 
 to the effect that the accused is guilty of the crime charged,^' or 
 because he was a judicial officer at the time of the commission of 
 
 W. 425; state v. Griffin, 87 Mo. 608; v. State, 117 Wis. 350, 93 N. W. 
 
 Goldaberry v. State, 92 Neb. 211, 137 1097. 
 
 N. W. 1116. 6 See supra, § 71. 
 
 1 King V. State, 43 Fla. 211, 31 So. 7 state v. Bartlett, 55 Me. 200. 
 254. 8 Ross V. State, 8 Wyo. 351, 57 Pae. 
 
 2 People V. Bemis, 51 Mieh. 422, 16 924. 
 
 N. W. 794. 9 People v. Montague, 71 Mich. 447, 
 
 3 See infra, § 702. 39 N. W. 585. 
 
 4 State V. Hawkins, 27 Wash. 375, lo State v. Ward, 61 Vt. 153, 17 Atl. 
 67 Pac. 814. 483. 
 
 5 People V. Gray, 251 111. 431, 96 " People v. O'Neill, 107 Mich. 556, 
 N. E. 268; People v. Foote, 93 Mich. 65 N. W. 540. 
 
 38, 52 N. W. 1036; Richards v. State, 12 Ross v. State, 8 Wyo. 351, 57 Pac. 
 
 82 Wis. 172, 51 N. W. 652; Kraimer 924. 
 
1104 PEOSECUTIN'O ATTORNEYS. [§ 700 
 
 the crime charged and, as such, denied bail to the defendant.^* 
 But a judge of a court of record cannot vacate the bench and 
 prosecute a person charged with crime in his court, and before a 
 jury drawn and impaneled by him ; and a judgment of conviction 
 obtained under such circumstances must be reversed.^* An ob- 
 jection as to the qualification of assistant counsel should be raised, 
 if known, at the earliest possible moment; laches in this respect 
 may be fatal. '° 
 
 § 700. Former Employment as Disqualification. — A.s stated 
 heretofore, the prosecuting attorney may himself be disqualified 
 from acting in a particular case,^* and a like disqualification may 
 exist in those appointed to assist him. Thus, an attorney cannot 
 be permitted to assist the district attorney if, by reason of profes- 
 sional relations with the accused, he has acquired a knowledge of 
 the facts upon which the criminal charge against his former cli- 
 ent is predicated, or which are closely interwoven therewith.^' 
 "With what confidence could one, arraigned upon a charge of 
 crime, confer with his attorney, or reveal to him his evidence, 
 
 13 Ross V. state, 8 Wyo. 351, 57 Pac. of this rule ia found in the relation 
 
 924. of attorney and client, which is one of 
 
 1* Lilly V. State, 7 Okla. Crim. 284, confidence and trust in the liigliest de- 
 
 123 Pac. 575. gree. The attorney becomes familiar 
 
 15 People V. Wood, 99 Mich. 620, 58 with all facts connected with his 
 N. W. 638. client's cause; he learns from his 
 
 16 See supra, § 693. client the weak points of the case, as 
 IT Wilson V. State, 16 Ind. 392; well as the strong ones. Such knowl- 
 
 State V. Halstead, 73 la. 376, 35 N. edge carried by the recalcitrant at- 
 W. 457; Com. v. Gibbs, 4 Gray torney to the other side would be the 
 (Mass.) 146; State v. Howard, 118 sure means of defeat and injustice to 
 Mo. 127, 24 S. W. 41. the client. If attorneys are author- 
 Attorneys at law are not mere mer- ized, after employment, to take re- 
 cenaries, who may desert the cause of tainers from the other side, the exer- 
 those for whom they are enlisted, and cise of this authority would be the 
 take service on the other side, for no means of oppression through which 
 other reason than that their fees are clients could be coerced into payment 
 not wholly paid. They are not bound of extortionate fees ; and the profes- 
 to serve those who will not pay them, sion of the law would be brought into 
 and may withdraw from the service of disgrace by permitting those who pur- 
 such; but they cannot take employ- sue it to take advantage of the se- 
 ment on the other side. The reason crets of litigants, obtained while the 
 
§ 701] PEOSECTJTING ATTORNEYS. , 1105 
 
 and thereby prepare for his defense, if that officer is permitted, 
 after thus acquiring such knowledge, to change their relative posi- 
 tions, and instead of standing up as his defender, to stand forth 
 as his accuser? Would he not consider it better to stand mute, 
 dumb, as the sheep before the shearer, rather than disclose the evi- 
 dence which might thus be turned against him? He might, per- 
 haps truthfully, believe it more to his interest to return to the 
 practice of a semi-barbarous age, when the prisoner was not heard 
 in his defense by counsel, or witnesses in his behalf, than thus to 
 have the weapons of his defense turned against him by those in 
 whom, by the acknowledged law and the statute, he had a right to 
 •confide." ** Of course, a former employment in a separate and 
 distinct matter, or a mere attempt to employ an attorney in the 
 case at bar, or general dealings by which no knowledge is acquired, 
 or could be acquired, as to the crime charged and the facts bearing 
 thereon, will not be sufiicient to disqualify one from accepting an 
 appointment as assistant prosecuting attorney." 
 
 § 701. Nonresidence as Disqualification. — In most juris- 
 dictions nonresident counsel may, as a matter of comity, be per- 
 mitted to appear in a particular case or for particular purposes ; *" 
 and, in accordance with this rule, it has been held that a nonresi- 
 dent attorney may be appointed an assistant prosecutor ; * and the 
 fact that he is not amenable to the court before which he appears, 
 
 ■confidential relation of attorney and Massachusetts. — Com. v. King, 8 
 
 client existed. The members of the Gray 501. 
 
 profession must have the fullest con- Michigan. — People v. Whittemore, 
 
 fidence of their clients. If it may be 102 Mich. 519, 61 N. W. 13. 
 
 abused, the profession will suffer by Texas.— Emerson v. State, 54 Tex. 
 
 the loss of the confidence of the people. ^rim. 628, 114 S. W. 834. ,, 
 
 ■nil. J r iv * . ■ „. „„ii „„ Wisconsin. — Lawrence v. State, 50 
 
 The good of the profession, as well as ' 
 
 ,, ^ . , ,. i J J ii. Wis. 507, 7 N. W. 343, distinguished 
 
 the safety of clients, demands the , c,. j. •,-, tt,- ../o-, ^t 
 
 . . , ^ ^ « i,. Biemel v. State, 71 Wis. 444, 37 N. 
 
 recognition and enforcement of these , 
 
 rules. State v. Halstead, 73 la. 376, j„ g^J ^^^^^^ ^ 2^. 
 
 35 N. W. 457. See also supra, §§ 174- ^ p^^pj^ ^ Thacker, 108 Mich. 652, 
 
 182. 66 N. W. 562 ; Goldsberry v. State, 92 
 
 "Wilson V. State, 16 Ind. 392. jj-gb 2II, 137 N. W. 1116; State v. 
 
 19 /otoo.— State c. Lewis, 96 la. 286, Kent, 4 N. D. 577, 62 N. W. 631, 27 
 
 <65 N. W. 293. ,L.E.A. 686. 
 Attys. at L Vol. II.— 70. 
 
1106- 
 
 PEOSECTJTING ATTOENEYS. 
 
 [§ 702 
 
 it has been said, cannot prejudice the rights of the accused.* So, 
 attorneys from another county may be appointed as assistants to 
 the prosecuting attorney in the trial of a particular case.' In Wis- 
 consin, however, a different rule prevails; and while it is there 
 recognized that foreign counsel may, by special favor, be permitted 
 to appear, they will not be permitted to assist in discharging the 
 duties and performing the functions of the office of district 
 attorney.* 
 
 § 702. Eligibility of Private Counsel. — At common law 
 criminal prosecutions were generally carried on by private persons 
 who were interested in the conviction and punishment of the ac- 
 cused,* and, notwithstanding the election of public prosecutors, 
 private counsel may still be employed and paid by private per- 
 sons.* In most jurisdictions, however, private counsel will only 
 
 * State V. Kent, 4 N. D. 577, 62 N. 
 W. 631, 27 L.R.A. 686. 
 
 8 State V. Corcoran, 7 Idaho 220, 61 
 Pac. 1034; State v. Novak, 109 la. 
 717, 79 N. W. 465. 
 
 4 State V. Russell, 83 Wis. 330, 53 
 N. W. 441. 
 
 5 See King v. State, 43 Fla. 211, 31 
 So. 254. 
 
 A private attorney is one employed 
 by, and in the interest of, private per- 
 sons, and not paid out of public funds. 
 He is one who has a special interest in 
 the securing of a, conviction, being 
 employed by private persons to prose- 
 cute. He is not one who, like a pub- 
 lic prosecutor, is presumed to do his 
 duty in an earnest and faithful man- 
 ner, impartially, and with the sole 
 purpose of presenting the whole truth 
 to the court and jury, both as to law 
 and facts. State v. Whitworth, 26 
 Mont. 107, 66 Pac. 748. See also 
 Clinton v. State, 58 Fla. 23, 50 So. 
 580. 
 
 8 United States. — U. S. v. Hanway, 
 
 2 Wall. Jr. (C. C.) 139, 26 Fed. Cas> 
 No. 15,299. 
 
 California. — ^People v. Blackwell, 
 27 Cal. 66; People v. Turcott, 65 Gal. 
 126, 3 Pac. 461; People v. Powell, 87 
 Cal. 348, 25 Pac. 481, 11 L.R.A. 75. 
 
 FJonrfa.— Thalheim v. State, 38 Fla. 
 169, 20 So. 938. 
 
 Hawaii. — Territory v. Chong Chak 
 Lai, 19 Hawaii 437, Ann. Cas. 1912B 
 657. 
 
 Idaho. — State v. Steers, 12 Idaho 
 174, 83 Pac. 104. 
 
 Illinois. — Hayner v. People, 213 111.. 
 142, 72 N. E. 792; People v. O'Farrell,. 
 247 111. 44, 93 N. E. 136; Bergstrasser 
 V. People, 134 111. App. 609. 
 
 Indiana. — Siebert v. State, 95 Ind. 
 471; Keyes v. State, 122 Ind. 527, 23: 
 N. E. 1097. 
 
 louHi. — State V. Fitzgerald, 49 la. 
 260, 31 Am. Rep. 148; State v. Mont- 
 gomery, 65 la. 483, 22 N. W. 639; 
 State V. Ormiston, 66 la. 143, 23 N. 
 W. 370; State v. Shinner, 76 la. 147, 
 40 N. W. 144; State V. Shreves, 81 
 
§ 702] 
 
 PEOSECUTING ATTORNEYS. 
 
 1107 
 
 be permitted to act with the consent of the prosecuting attorney, 
 and the permission of the court'' Of course, in granting such 
 
 la. 615, 47 N. W. 899; State v. Graf- 
 ton, 89 la. 109, 56 N. W. 257; State 
 V. Helm, 92 la. 540, 61 N. W. 246. 
 
 Kansas. — State v. Wilson, 24 Kan. 
 189, 36 Am. Rep. 257 ; State v. Wells, 
 54 Kan. 161, 37 Pae. 1005. 
 
 Kentucky. — Price v. Caperton, 1 
 Duv. 207; Adams v. Com., 129 Ky. 
 255, 111 S. W. 348, 33 Ky. L. Eep. 
 779 ; Catron v. Com., 140 Ky. 61, 130 
 S. W. 951; Bennyfield v. Com., 17 S. 
 W. 271, 13 Ky. L. Rep. 446. 
 
 Louisiana. — State v. Mangrum, 35 
 La. Ann. 619; State v. Reed, 49 La. 
 Ann. 704, 21 So. 732; State v. Pet- 
 rich, 122 La. 127, 47 So. 438. See 
 also State v. Cato, 116 La. 195, 40 So. 
 633. 
 
 Maine. — State v. Bartlett, 55 Me. 
 200. 
 
 Minnesota. — State v. Rue, 72 Minn. 
 296, 75 N. W. 235. 
 
 Mississippi. — Carlisle v. State, 73 
 Miss. 387, 19 So. 207. 
 
 Missouri. — State v. Robb, 90 Mo. 30, 
 2 S. W. 1; State v. Taylor, 98 Mo. 
 240, 11 S. W. 570; State v. Orrick, 106 
 Mo. Ill, 17 S. W. 176, 329. 
 
 Montana. — State v. Tighe, 27 Mont. 
 327, 71 Pac. 3; State v. O'Brien, 35 
 Mont. 482, 10 Ann. Cas. 1006, 90 Pac. 
 514. 
 
 Nebraska. — Polin v. State, 14 Neb. 
 540, 16 N. W. 898 ; Bradshaw v. State, 
 17 Neb. 147, 22 N. W. 361; Gandy v. 
 State, 27 Neb. 707, 43 N. W. 747, 44 
 N. W. 108 ; Blair v. State, 72 Neb. 501, 
 101 N. W. 17. 
 
 New Jersey. — Gardner v. State, 55 
 N. J. L. 17, 26 Atl. 30. 
 
 North Dakota. — State v. Kent, 4 N. 
 D. 577, 62 N. W. 631, 27 L.R.A. 686. 
 
 Oklahoma. — Reed v. State, 2 Okla. 
 Crim. 589, 103 Pac. 1042. 
 
 Texas. — Burkhard v. State, 18 Tex. 
 App. 599. 
 
 Utah.— People v. Tidwell, 4 Utah 
 506, 12 Pac. 61. 
 
 Vermont. — State v. Ward, 61 Vt. 
 153, 17 Atl. 483. 
 
 Virginia. — ^Hopper v. Com., 6 Grat. 
 684; Jackson v. Com., 96 Va. 107, 30 
 S. E. 452; McCue v. Com., 103 Va. 
 870, 49 S. E. 623. 
 
 Washington. — Stern v. State Board 
 of Dental Examiners, 50 Wash. 100, 
 96 Pac. 693. 
 
 7 California. — People v. Powell, 87 
 Cal. 348, 25 Pac. 481, 11 L.R.A. 75. 
 
 Illinois. — Hayner v. People, 213 111. 
 142, 72 N. E. 792; People v. O'Far- 
 rell, 247 111. .44, 93 N. E. 136; People- 
 V. Blevins, 251 111. 381, Ann Cas.. 
 1912C 451, 96 N. E. 214; People K. 
 Gray, 251 111. 431, 96 N. E. 268. 
 
 Indiana. — Siebert v. State, 95 Ind'. 
 471. 
 
 Iowa. — State v. Fitzgerald, 49 la. 
 260, 31 Am. Rep. 148 ; State v. Mont- 
 gcmcry, 65 la. 483, 22 N. W. 639. 
 
 Kansas. — State v. Wilson, 24 Kan. 
 189, 36 Am. Rep. 257 ; State v. Wells, 
 54 Kan. 161, 37 Pac. 1005. 
 
 Maine. — State v. Bartlett, 55 Me. 
 £00. 
 
 Minnesota. — State v. Rue, 72 Minn. 
 296, 75 N. W. 235. 
 
 Mississippi. — Edwards v. State, 47 
 Miss. 581. 
 
 Montana. — State v. Tighe, 27 Mont.. 
 327, 71 Pac. 3; State v. Biggs, 45. 
 Mont. 400, 123 Pac. 410. 
 
 Nebraska. — Bradshaw v. State, 17 
 Neb. 147, 22 N. W. 361; McKay v.. 
 
1108 
 
 PROSECUTING ATTOENEYS. 
 
 [§ 102 
 
 permission, the court should be satisfied that no hindrance is 
 placed in the path of justice ; ' and it is presumed that its action 
 is a sufficient guaranty that the accused will not be made the victim 
 of an overzealous prosecution by private persons.® There is much 
 to be said in favor of this position ;*" on the other hand, however, 
 
 State, 90 Neb. 63, Ann. Cas. 1913B 
 1034, 132 N. W. 741, 39 L.R.A.(N.S.) 
 714, 91 Neb. 281, Ann. Cas. 1913B 
 1039, 135 N. W. 1024, 39 L.K.A.{N.S.) 
 720. 
 
 North Dakota. — State v. Kent, 4 N. 
 D. 577, 62 N. W. 631, 27 L.R.A. 686. 
 
 Oklahoma. — Reed v. State, 2 Okla. 
 Crim. 589, 103 Pac. 1042. 
 
 Washington. — State v. Hoshor, 26 
 Wash. 643, 67 Pac. 386; Stern v. 
 State Board of Dental Examiners, SO 
 Wash. 100, 96 Pac. 693. 
 
 SHayner v. People, 233 111. 142, 72 
 N. E. 792; Goldsberry v. State, 92 
 Neb. 211, 137 N. W. 1116. 
 
 9 State V. Kent, 4 N. D. 577, 62 N. 
 W. 631, 27 L.R.A. 686. 
 
 10 Argument in Favor of Private 
 Counsel. — "The fact that the state's 
 attorney who controls criminal cases 
 is not allowed to receive any com- 
 pensation from private prosecutors for 
 the prosecution of b. criminal cause 
 does not warrant the conclusion that 
 counsel paid by private persons shall 
 not be permitted to assist in the trial 
 of such a case. It is one thing to 
 have the prosecution entirely in the 
 hands of one who may be influenced, 
 because of a retainer, by the strong 
 desire of his client to secure a con- 
 viction; but it is an entirely different 
 thing to allow such an interested 
 counsel to aid in the prosecution of 
 one who stands affected by no other 
 motive than that of securing the pun- 
 ishment of guilt, and who has abso- 
 
 ■ lute control over the case. The law 
 
 has removed criminal prosecutions 
 from the control of private interests, 
 but it has not excluded such interests 
 from all participation therein. If no 
 error is committed on the trial, we fail 
 to see how an accused can be preju- 
 diced by the fact that those personal- 
 ly interested have employed private 
 counsel to aid the public prosecutor. 
 Certainly, he should not be heard to 
 complain of the zeal of the private 
 counsel, if such counsel has not al- 
 lowed his zeal to hurry him into er- 
 ror. The best mode of reaching the 
 truth is by the strenuous contentions 
 of opposing counsel, each animated by 
 the conviction that the cause he has 
 espoused is just. The public have 
 some interests at stake in a criminal 
 prosecution. May all the zeal be dis- 
 played on one side, and none be toler- 
 ated on the other? The public inter- 
 ests demand that a prosecution should 
 be conducted with energy and skill. 
 While the prosecuting officer should 
 see that no unfair advantage is taken 
 of the accused, yet he is not a judicial 
 officer. Those who are required to 
 exercise judicial functions in the case 
 are the judge and the jury. The pub- 
 lic prosecutor js necessarily a parti- 
 san in the case. If he were compelled 
 to proceed with the same circum- 
 spection as the judge and the jury, 
 there would be an end to the convic- 
 tion of criminals. Zeal in the pros- 
 ecution of criminal cases is therefore 
 to be commended, and not condemned. 
 It is the zeal of counsel in the court 
 
§ 702] 
 
 PEOSECtTTING ATTOENEYS. 
 
 1109 
 
 it would seem that the prosecuting officer and the court would 
 know when assistance was required, and that the legislature should 
 provide therefor, and that such assistance should be paid for by 
 the state, and not by any individual. And where the law does pro- 
 vide for the employment of special assistants in those cases,'^ coun- 
 sel employed and paid by private persons should not be permitted 
 
 room, alone, of which the accused can 
 complain. No decision can be found 
 which questions the right of the pros- 
 ecuting officer to consult with, and 
 receive all manner of aid, even during 
 the trial, from counsel for private 
 parties, outside of the court room. 
 And if such zeal in the court room, 
 on the trial, does not result in error, 
 what conceivable difference can it 
 make whether such assistant was em- 
 ployed by the public, or by private 
 persons? May not cross-examination 
 of witnesses be conducted, and argu- 
 ments to the court and jury be made, 
 by one who is as much convinced of 
 the guilt of the accused as his counsel 
 is persuaded of his innocence? The 
 manner of conducting the case in the 
 court room cannot work legal preju- 
 dice to the accused, without resulting 
 in error for which the conviction will 
 be set aside. It is therefore of no 
 legal importance what inspires the 
 zeal of the attorney who assists in 
 the trial. Whatever is done to the 
 injury of the prisoner by private 
 counsel, for which he can have no re- 
 dress, is done out of court; for in- 
 stance, by concealing or fabricating 
 evidence. At just this point, where 
 the zeal of counsel employed by pri- 
 vate parties may be deadly to the 
 accused, no kind of safeguard is or 
 can be thrown around him. The pros- 
 ecuting officer may consult with, and 
 be entirely governed by the advice of. 
 
 such private counsel; and yet the ac- 
 cused has no remedy, if the private 
 counsel does not participate in the 
 trial. If he does so participate, his 
 zeal works no more prejudice to the 
 accused than the zeal of an other 
 equally able counsel who may be em- 
 ployed by the public. The cases all 
 agree that an assistant hired by the 
 public may engage in the trial with- 
 out giving the prisoner any legal 
 cause for complaint. Of course, the 
 latter may think he is prejudiced be- 
 cause of being compelled to confront 
 an exceptionally able and experienced 
 prosecutor, but this furnishes no legal 
 ground for overthrowing the convic- 
 tion. The question can be placed in 
 a clear light by the following state- 
 ment of it: Can a defendant in a 
 criminal case, who is obliged to sub- 
 mit to the zeal of an assistant prose- 
 cutor employed by the public, insist 
 that the zeal of an assistant counsel 
 employed by interested parties, shall 
 not be displayed against him, although 
 it results in no error on the part of 
 the prosecution in the management 
 of the case? We think there is only 
 one answer to this question, and that 
 is against the right of the accused to 
 complain in either case, so long as no 
 error has been committed by the as- 
 sistant on the trial." Per Corliss, J., 
 State V. Kent, 4 N. T>. 577, 62 N. W. 
 631, 27 L.R.A. 686. 
 11 See supra, § 697. 
 
1110 PEOSECUTIITG ATT0ENEY8. [§ 703 
 
 to act,^* even at the instance of the prosecuting attorney.^' But 
 it has been held, even v?here this position is maintained, that pri- 
 vate counsel may be heard on habeas corpus proceedings." Nor 
 is an action for the recovery of a penalty for the obstruction of a 
 highway such a criminal proceeding as will prevent the prosecutor 
 therein from employing private counsel, or prevent such counsel 
 from taking part in the prosecution of the suit." 
 
 § 703. Number of Assistants and Time of Appointment. — 
 The number of counsel which will be permitted to engage in a 
 trial, as assistants to the prosecuting attorney, must be determined 
 by the trial court, in the exercise of a sound judicial discretion, 
 taking into consideration the facts and circumstances of the par- 
 ticular case ; ^^ and unless its discretion has been abused to the 
 prejudice of the defendant, or in a manner affecting the merits of 
 the cause, the appellate court will not interfere." Where four at- 
 torneys were appointed to conduct a prosecution because of the dis- 
 qualification of the prosecuting attorney, the appellate court de- 
 clined to reverse a judgment of conviction on the ground of such 
 appointment, although the action of the trial court was censured.*' 
 But the court should not permit counsel for defendant to be over- 
 whelmed, on account of inexperience, by the number and ability 
 of counsel assisting the state's attorney." In the absence of regu- 
 
 la Massachusetts. — Com. ». Gibbs, 4 W Sneed v. People, 38 Mich. 248; 
 
 Gray 146; Com. v. Williams, 2 Cush. Biemel v. State, 71 Wis. 444, 37 N. W. 
 
 582; Com. v. Knapp, 10 Pick. 477, 20 244. 
 
 Am. Dec. 534; Com. v. Scott, 123 1* State «. Huegin, 110 Wis. 189, 85 
 
 Mass. 222, 25 Am. Rep. 81. N. W. 1046, 62 L.R.A. 700. 
 
 Michigan. — Meister v. People, 31 IS La Barre v. Bent, 154 Mich. 520, 
 
 Mich. 99; Sneed v. People, 38 Mich. 118 N. W. 6, 15 Detroit Leg. N. 822. 
 248; People v. Hurst, 41 Mich. 328, 1 iBThalheim v. State, 38 Fla. 169, 
 
 N. W. 1027; People v. Hendryx, 58 20 So. 938; Com. v. Knapp, 9 Pick. 
 
 Mich. 319, 25 N". W. 299; McCurdy v. (Mass.) 496, 20 Am. Dec. 491. 
 New York L. Ins. Co., 115 Mich. 20, "State v. Griffin, 87 Mo. 608; 
 
 72 N. W. 996, 4 Detroit Leg. N. 738. State v. Sweeney, 93 Mo. 38, 5 S. W. 
 
 Wisconsin. — ^Biemel v. State, 71 614. 
 Wis. 444, 37 N. W. 244; Bird v. State, " State v. Griffin, 87 Mo. 608. 
 
 77 Wis. 276, 45 N. W. 1126; State v. "People v. Blevins, 251 111. 381, 
 
 Huegin, 110 Wis. 189, 85 N. W. 1046, Ann. Cas. 1912C 451, 96 N. E. 214. 
 62 L.II.A. 700. It might be a wrong and oppression 
 
§ 704] PEOSECTITING ATTOENEYS. 1111 
 
 lation by statute or rule of court, it would seem that assistant 
 counsel may be appointed at any time. It is true, of course, that 
 the necessity therefor may arise even during the conduct of a trial, 
 as, for instance, where the prosecutor is taken ill, and aid becomes 
 necessary to prevent delay, annoyance, unnecessary expense and, 
 perhaps, a failure of justice.^" In some jurisdictions, however, 
 it is required that the defendant in a criminal case should be in- 
 formed not only of the nature of the accusation, but also of the 
 forces which are to be marshaled against him ; * but this require- 
 ment, it has been held, is sufficiently complied with where it ap- 
 pears that defendant's counsel has an opportunity to examine all 
 of the jurors touching their acquaintance or affiliation with the 
 appointee, even though some jurors may have been examined be- 
 fore the appointment was made.^ 
 
 § 704. Qualification Generally and Tenure. — In the ap- 
 pointment of deputies, substitutes, or assistant prosecuting attor- 
 neys, all statutory requirements should be complied with. The 
 local laws must be consulted in this respect* It is not necessary, 
 
 to a defendant to permit able and ex- Michigan. — ^People v. Wright, 89 
 
 perienced counsel employed by pri- Mich. 70, 50 N. W. 792, distinguishing 
 
 vate parties to assist a competent People v. Bussey, 82 Mich. 49, 46 N. 
 
 state's attorney in a contest with in- W. 97. 
 
 experienced or inefficient counsel for Missouri. — State v. Taylor, 98 Mo. 
 
 the defense. Hayner v. People, 213 240, 11 S. W. 570. 
 
 111. 142, 72 N. E. 792. Nebraska.— Gaudy v. State, 27 Neb. 
 
 20 State V. Cobley, 128 la. 114, 103 707, 43 N. W. 747, 44 K W. 108; 
 
 N. W. 99. Bush V. State, 62 Neb. 128, 86 N. W. 
 
 1 Knights V. State, 58 Neb. 225, 78 1062 ; Johns v. State, 88 Neb. 145, 129 
 
 N. W. 508, 76 Am. St. Eep. 78; Gallo- N. W. 247; McKay v. State, 90 Neb. 
 
 way V. State, 88 Neb. 447, 129 N. W. 63, Ann. Cas. 1913B 1034, 132 N. W. 
 
 987. 741, 39 L.K.A.(N.S.) 714, 91 Neb. 
 
 8 Johns V. State, 88 Neb. 145, 129 281, Ann. Cas. 1913B 1039, 135 N. W. 
 N. W. 247. See also Galloway v. 1024, 39 L.K.A.(N.S.) 720; Golds- 
 State, 88 Neb. 447, 129 N. W. 987. berry v. State, 92 Neb. 211, 137 N. W. 
 
 3 United States.— U. S. Rev. Stat. 1116. 
 
 sec. 793, (4 Fed. Stat. Annot. 72); New Yor/c— People v. Taylor, 17 
 
 In re Farrow, 3 Fed. 112, 4 Woods Misc. 505, 40 N. Y. S. 321. 
 
 491. North Dakota.— State v. Kent, 4 N. 
 
 Florida.— King v. State, 43 Fla. 211, D. 577, 62 N. W. 631, 27 L.E.A. 686. 
 
 31 So. 254. Oftio.— Martin v. State, 16 Ohio 364. 
 
1112 
 
 PEOSECtJTING ATTOENEYS. 
 
 [§ 704 
 
 however, that such appointments should be drawn up with the tech- 
 nical accuracy required in pleadings, or other legal documents.* 
 It has been held that the fact of being permitted by the trial court 
 to proceed with a cause in the absence of the prosecuting officer, 
 is equivalent to an appointment ; * and also that the overruling of 
 an objection, by the defendant, to counsel assisting the district at- 
 torney, the latter being present and not objecting, is equivalent to 
 a request by the prosecutor, and permission by the court, that such 
 counsel assist in the prosecution.* It will be presumed, in the 
 absence of a showing to the contrary, that all the legal require- 
 ments were complied with ; ' and in some jurisdictions it has been 
 held that statutes providing for the appointment of substitute and 
 assistant prosecuting attorneys are not exclusive,' so that, in those 
 states, the absence of statutory formalities would seem to be im- 
 material.' 
 
 The tenure of office of deputy district attorneys is pro- 
 vided for by statute; as a rule, it is coextensive with that of the 
 
 Oklahoma. — Dodd v. State, 5 Okla. 
 Crim. 513, 115 Pac. 632. 
 
 South Dakota. — State v. Phelps, 5 
 S. D. 480, 59 N. W. 471. 
 
 Texas. — Murrey v. State, 48 Tex. 
 Crim. 219, 87 S. W. 349. 
 
 4U. S. V. Twining, 132 Fed. 129; 
 Colbert v. State, 125 Wis. 423, 104 
 N. W. 61. 
 
 5 State V. Duncan, 116 Mo. 288, 22 
 S. W. 699. 
 
 « Rounds V. State, 57 Wis. 45, 14 N. 
 W. 865, distinguished Biemel v. State, 
 71 Wis. 453, 37 N. W. 244. 
 
 1 United States. — U. S. v. Twining, 
 132 Fed. 129. 
 
 Indiana. — Shattuck v. State, 11 
 Ind. 473. 
 
 Massachusetts. — Com. v. Scott, 123 
 Mass. 222, 25 Am. Rep. 81. 
 
 Minnesota. — State v. Borgstrom, 69 
 Minn. 508, 72 N. W. 799, 975. 
 
 Missouri. — State v. Wilson, 200 Mo. 
 23, 98 S. W. 68. 
 
 Montana. — State v. O'Brien, 35 
 Mont. 482, 10 Ann. Cas. 1006, 90 Pac. 
 514. 
 
 Neiraska. — Spaulding v. State, 61 
 Neb. 289, 85 N. W. 80; Blair v. State, 
 72 Neb. 501, 101 N. W. 17; McKay 
 V. State, 90 Neb. 63, Ann. Cas. 1915 
 B 1034, 132 N. W. 741, 39 L.R.A. 
 (N.S.) 714, 91 Neb. 281, Ann. Cas. 
 1913 B 1039, 135 N. W. 1024, 39 
 L.R.A.(N.S.) 720; Goldsberry t. 
 State, 92 Neb. 211, 137 N. W. 1116. 
 
 North Dakota. — State v. Tough, 12 
 N. D. 425, 96 N. W. 1025. 
 
 Oftio.— Price v. State, 35 Ohio St. 
 601. 
 
 Tennessee. — Douglass v. State, 6 
 Yerg. 526; Turner v. State, 89 Tenn. 
 547, 15 S. W. 838. 
 
 8 See supra, % 696 note. See also 
 supra, § 697 note. 
 
 9 People V. Walters, 98 Cal. 138, 32 
 Pac. 864. 
 
§ 705] 
 
 PEOSECUTING ATTOENETS. 
 
 1113 
 
 prosecuting officer. '" Substitute prosecutors are usually appointed 
 for a specific purpose, on the accomplishment of which the ap- 
 pointment comes to an end, or until the disability, because of which 
 the appointment was made, ceases,'"' and the prosecuting oiScer re- 
 sumes his official position ; ^ but such appointments are not limited 
 to a single term of court.'* 
 
 Power, Duty, Liability and Compensation. 
 
 § 70S. Duties Generally. — The duties of a prosecuting at- 
 torney are usually prescribed by statute,'* and may be increased or 
 diminished as the legislature may see fit,'° and in some instances 
 certain duties are imposed by the constitution ; but the prosecutor 
 cannot be compelled to perform acts other than those so provided 
 for.'* The prosecutor represents the people, and his right to do 
 so, as expressed in the constitution or statute, cannot be restricted 
 
 10 state V. Mechem, 31 Kan. 435, 2 
 Pac. 816; State v. Montgomery, 25 La. 
 Ann. 138; State v. Rankin, 33 Neb. 
 266, 49 N. W. 1121; State v. Man- 
 love, 33 Tex. 798. 
 
 "King V. State, 43 Fla. 211, 31 So. 
 254; In re Prosecuting Attorney, 2 
 Ohio Dee. (Reprint) 602, 4 West 
 L. Month. 147. 
 
 12 Return of regular district attor- 
 ney vacates appointment. State v. 
 Hart, (La.) 62 So. 161. 
 
 Prosecutor May Enter GoMse on Re- 
 covery. — The cause which necessi- 
 tates the absence of a district attor- 
 ney having ceased, it is his duty to 
 report to the court; and, having done 
 so, it is unobjectionable that he par- 
 ticipate in the prosecution. State v. 
 Smith, 107 La. 129, 31 So. 693, 1014. 
 
 In State v. Smith, 107 La. 129, 31 
 So. 693, 1014, it was held that after 
 an attorney has been appointed by the 
 court to represent the district attor- 
 ney, he may continue in the prosecu- 
 
 tion of the case to the end, althougli 
 the district attorney had resumed full 
 charge of the case. 
 
 15 State V. Hart, (La.) 62 So. 161. 
 1* United States. — U. S. e. Morin, 
 
 4 Biss. 93, 26 Fed. Cas. No. 15,810. 
 
 Idaho. — Board of County Com'rs v. 
 Bassett, 14 Idaho 324, 93 Pac. 774. 
 
 Indiana. — State v. Morrison, 64 Ind. 
 141. 
 
 Kansas. — Clough B. Hart, 8 Kan. 
 487. 
 
 Oklahoma. — Maliaffey v. Territory, 
 11 Okli. 213, 66 Pac. 342. 
 
 Right to Sue. — There is no power 
 vested in the district attorneys of the 
 United States to sue in the name of 
 the government. Their powers are de- 
 fined in the several statutes creating 
 the office and defining its duties. 
 Cohen v. U. S., 38 App. Cas. (D. C.) 
 123. 
 
 IB State V. Morrison, 64 Ind.. 141. 
 
 16 Bevington v. Woodbury County, 
 107 la. 424, 78 N. W. 222. 
 
1114 
 
 PEOSECUTING ATTOENBYS. 
 
 [§ 706 
 
 or superseded excepting in the manner provided for by law." He 
 is vested with a personal discretion as a minister of justice, and 
 it is his duty to act impartially. He must guard the interests of 
 public justice in behalf of all concerned, and he must not become 
 entangled with private grievances which will prevent him from 
 properly performing his official duties.*' A prosecuting officer is 
 invested with a broad discretion, subject to a certain judicial con- 
 trol,*' and he will not be excused for the nonperformance of his 
 official duties because of local sentiment or popular clamor.*" 
 
 § 706. Criminal Prosecutions. — Acting within the law,* it 
 is the right and the duty of prosecuting attorneys to prosecute all 
 persons who violate the penal laws within their districts ; * 
 
 "Mahaffey v. Territory, 11 Okla. 
 213, 66 Pac. 342 ; Kelly v. Ferguson, 5 
 Okla. Grim. 316, 114 Pac. 631. 
 
 1* Indiana. — State v. Henning, 33 
 Ind. 189. 
 
 Michigan. — People v. Bemis, 51 
 Mich. 422, 16 N. W. 794; Engle v. 
 Chipman, 51 Mich. 524, 16 N. W. 886. 
 
 New York. — People v. Kurminsky, 
 23 Misc. 504, 52 N. Y. S. 609. 
 
 Oklahoma. — Kelly v. Ferguson, 5 
 Okla. Grim. 316, 114 Pac. 631. 
 
 Pennsylvania. — Gom. v. Bubnis, 197 
 Pa. St. 542, 47 Atl. 748. 
 
 19 State V. Russell, 83 Wis. 330, 53 
 N. W. 441. 
 
 «0 In re Voss, 11 N. D. 540, 90 N. 
 W. 15. See also State v. Foster, 32 
 Kan. 14, 3 Pac. 534; Michael v. Mat- 
 son, 81 Kan. 360, 105 Pac. 537. 
 
 1 United States. — Snow v. U. S., 18 
 Wall. 317, 21 U. S. (L. ed.) 784. 
 
 Idaho. — People v. Heed, 1 Idaho 
 531. 
 
 Missouri. — ^Hill v. Butler Gounty, 
 195 Mo. 511, 94 S. W. 518. 
 
 Montana. — Independent Pub. Co. c. 
 Lewis & Clarke Gounty, 30 Mont. 83, 
 75 Pac. 860. 
 
 nor can 
 
 Texas. — Harris Gounty v. Stewart, 
 91 Tex. 133, 41 S. W. 650; Fleming v. 
 State, 28 Tex. App. 234, 12 S. W. 
 605. 
 
 ^Arkamsas. — ^Holder v. State, 58 
 Ark. 473, 25 S. W. 279. 
 
 CoZorodo.— Atchison, T. & S. F. E. 
 Go. V. People, 5 Colo. 60. 
 
 Georgia. — Blalock v. Pillsbury, 76 
 6a. 493; Fambrough v. State, 113 6a. 
 934, 39 S. E. 324; Williams c. State, 
 121 Oa. 195, 48 S. E. 938. 
 
 Kansas. — State v. Foster, 32 Kan. 
 14, 3 Pac. 534; State v. Trinkle, 70 
 Kan. 396, 78 Pac. 854. 
 
 Kentucky. — Thompson v. Carr, 13 
 Bush 215; Adams v. Gom. 129 Ky. 
 255, 111 S. W. 348, 33 Ky. L. 
 Rep. 779; Keeton v. Com., 108 S. W. 
 315, 32 Ky. L. Rep. 1164. 
 
 Nebraska. — Bartley v. State, 53 
 Neb. 310, 73 N. W. 744; Dinsmore v. 
 State, 61 Neb. 418, 85 N. W. 445. 
 
 Oklahoma. — ^Mahaffey v. Territory, 
 11 Okla. 213, 66 Pac. 342; Board of 
 Gom'rs v. State Capital Co., 16 Okla. 
 625, 86 Pac. 518; Mitchell v. State, 7 
 Okla. Crim. 563, 124 Pac. 1112. 
 
 Tennessee. — State v. Kittrell, 7 
 
§ 706] 
 
 PEOSECUTIIirG ATTORNEYS. 
 
 1115 
 
 they be superseded therein,* excepting where they become disabled 
 or disqualified.* They are, however, subject to a certain judicial 
 control in many things, and this is particularly true as to the con- 
 duet of the trial.* The prosecuting officer may institute criminal 
 prosecutions,* and in some jurisdictions he must do so, when noti- 
 fied of a violation of the law ; '' but, in the absence of statutory 
 regulation, it would seem that a prosecuting officer is not obliged 
 to act on his own knowledge or belief that a crime has been com- 
 mitted.' The advice of prosecuting attorneys as a protection to 
 persons commencing criminal prosecutions has been considered in 
 another chapter.^ So, as a general rule, the prosecuting officer 
 may do whatever is essential to bring criminals to trial, con- 
 duct the trial, make all motions that he believes to be necessary 
 therein, and take such steps after the trial as may seem to him 
 proper, providing, of course, that in so doing his conduct does 
 
 Baxt. 167; Moore v. State, 5 Sneed 
 510. 
 
 Texas. — Jackson v. Swayne, 92 
 Tex. 242, 47 S. W. 711. 
 
 3 Vnited States.— Fish v. U. S., 36 
 Fed. 677. 
 
 Iowa. — State v. Grimmell, 116 la. 
 596, 88 N. W. 342. 
 
 Kentucky. — Keeton v. Com., 108 S. 
 W. 315, 32 Ky. L. Kep. 1164. 
 
 Oklahoma. — Board of Com'rs v. 
 State Capital Co., 16 Okla. 625, 86 
 Pac. 518. 
 
 Texas. — Howth v. Greer, 40 Tex. 
 Civ. App. 552, 90 S. W. 211; Upton v. 
 San Angelo, 42 Tex. Civ. App. 76, 94 
 S. W. 436. 
 
 4 See swpra, §§ 696, 697. And see 
 also infra, § 713. 
 
 6 England. — Rex v. Phillips, 3 Burr. 
 1564, 4 Burr. 2089. 
 
 United States. — U. S. v. Morin, 4 
 Biss. 93, 26 Fed. Cas. No. 15,810; 
 U. S. V. Scroggins, 3 Woods 529, 27 
 Fed. Cas. No. 16,244. 
 
 California. — Ex p. Williams, 116 
 
 Gal. 512, 48 Pac. 499; Ex p. Hayter, 
 16 Gal. App. 211, 116 Pac. 370. 
 
 Kansas. — State v. Foster, 32 Kan. 
 14, 3 Pac. 534; State v. Trinkle, 70 
 Kan. 396, 78 Pac. 854. 
 
 Louisiana. — State v. Cole, 38 La. 
 Ann. 843. 
 
 Michigan. — Beecher v. Anderson, 45 
 Mich. 543, 8 N. W. 539; Engle v. 
 Chipman, 51 Mich. 524, 16 N. W. 886. 
 
 New York. — People v. Rosenthal, 
 197 N. Y. 394, 90 N. E. 991. 
 
 Pennsylvania. — Com. v. Hippie, 69 
 Pa. St. 9. 
 
 Texas. — Murphy v. Sumners, 54 
 Tex. Grim. 369, 112 S. W. 1070. 
 
 8 Bartley v. State, 53 Neb. 310, 73 
 N. W. 744; State v. Guglielmo, 46 Ore. 
 250, 7 Ann. Gas. 976, 79 Pac. 577, 80 
 Pac. 103, 69 L.R.A. 466 ; Treasurer of 
 Vermont v. Brooks, 23 Vt. 698. 
 
 7 State V. Trinkle, 70 Kan. 396, 78 
 Pac. 854. 
 
 8 State V. Trinkle, 70 Kan. 396, 78 
 Pac. 854. 
 
 s Supra, § 377. 
 
1116 PEOSECUTING ATTORNEYS. [§ 707 
 
 not conflict with the general laws of his state, or of the United 
 States, or with his duties as an ofiicer and an attorney at law.** 
 Prosecuting officers are not obliged to appear in the courts of com- 
 mitting magistrates unless that duty is imposed upon them by the 
 legislature, but they may do so should they deem it advisable; '* 
 and while the magistrate is not bound by the judgment of a district 
 attorney, nor need he act upon his advice, he will seldom hold a 
 defendant to bail, or convict him on trial should he have jurisdic- 
 tion to do so, when the district attorney advises him in good faith 
 that a crime has not been established.** The duty of prosecuting at- 
 torneys in conducting trials is considered elsewhere.*' 
 
 § 707. Proceedings before Grand Jury. — The prosecuting 
 attorney is, as a general rule, authorized to appear before the grand 
 jury and aid in the presentation of the facts; private counsel 
 should not be permitted to discharge this duty.** jN^or has one 
 whose conduct is under investigation by a grand jury, any right 
 to demand that he be permitted to go before such jury for the 
 purpose of explaining the charges preferred against him.** A sub- 
 stitute or deputy district attorney would, of course, be permitted 
 to take the place of the regular officer during his absence or in- 
 
 10 state V. New Jeraey Jockey Club, Mississippi. — Durr v. State, 53 Miss. 
 52 N. J. L. 493, 19 Atl. 976; Carnal v. 425; Wilson v. State, 70 Miss. 595, 13 
 People, 1 Park. Crim. (N. Y.) 262; So. 225, 35 Am. St. Rep. 664; State v. 
 People V. Columbia County Sup'rs, 134 Barnett, 98 Miss. 812, 54 So. 313 ; 
 N. Y. 1, 31 N. E. 322; Wood v. State, Collier v. State, 61 So. 689. 
 
 4 Okla. Crim. 436, 112 Pac. 11 ; Fields New Torfc.— People v. Seannell, 36 
 
 V. State, Mart. & Y. (Tenn.) 168. Misc. 40, 72 N. Y S. 449. 
 
 11 State V. Jackson, 68 Ind. 58; North Dakota. — Ex p. Corliss, 16 N. 
 State V. Bezou, 48 La. Ann. 1369, 20 D. 470, 114 N. W. 962. 
 
 So. 892; State v. Brown, 106 La. 437, Oklahoma. — Eeed v. State, 2 Okla. 
 
 31 So. 50; Smith v. Portage County Crim. 589, 103 Pac. 1042; State v. 
 
 Com'rs, 9 Ohio 25. Maben, 5 Okla. Crim. 581, 114 Pac. 
 
 I* Beecher v. Anderson, 45 Mich. 1122. 
 
 543, 8 N. W. 539. South Carolina. — State v. Addison, 
 
 13 See infra, §§ 712-714. 2 S. C. 356. 
 
 14 Florida.— MiWer v. State, 42 Fla. Texos.— Rothschild v. State, 7 Tex. 
 266, 28 So. 208. App. 519. 
 
 Minnesota. — State v. Slocum, 111 15 Matter of Lyons, 162 Mo. App. 
 
 Minn. 328, 126 N. W. 1096. 688, 145 S. W. 844. 
 
§§ 708, 709] PEOSECUTING ATTORNEYS, 1117 
 
 capacity; and in some instances private counsel have been per- 
 mitted to appear before the grand jury.'^ 
 
 § 708. Civil Actions. — In several states certain civil' 3uties 
 are imposed on prosecuting attorneys, and this is especially true 
 where that officer is also the county attorney. As a general rule, 
 the duties so imposed are confined to representing the county in 
 such civil actions as may be brought by or against it, in preventing 
 the misappropriation of its funds or property, and in represent- 
 ing it in any other respect when requested by the county authori- 
 ties. In some jurisdictions the prosecutor is also required to col- 
 lect fines and penalties, and to recover on forfeited recognizances. 
 So, in some instances, the prosecuting officer is required under lo- 
 cal statutes to represent the state in certain civil actions. Statutes 
 of this character show absolutely no uniformity, and are so fre- 
 quently changed that little can be said of them even in the same 
 jurisdiction. The local laws must be consulted in each instance. 
 Of course, a prosecuting attorney, in representing his district, 
 county or state in civil actions, would be governed by the prin- 
 ciples stated throughout this work with reference to lawyers gen- 
 erally. Whether they are required or authorized to sue for minor 
 governmental instrumentalities, such as drainage districts, in- 
 cluded within the county, depends on the local statutes." 
 
 § 709. Authority outside of District. — Prosecuting officers 
 are elected for specified districts, and have no authority outside 
 
 16 United States.— U. S. v. Haskell, 498, 61 N. W. 223 ; State v. Tyler, 122 
 
 169 Fed. 449; U. S. v. Heinze, 177 la. 125, 97 N. W. 983 ; State «. Miller, 
 
 Fed. 770. 132 la. 587, 109 N. W. 1087. 
 
 Alabama. — Elevins v. State, 68 Ala. Louisiana. — State v. Hart, 62 So. 
 
 92; Jones v. State, 150 Ala. 54, 43 161. 
 
 So. 179. Texas. — State v. Johnson, 12 Tex. 
 
 Arkansas. — Bennett v. State, 62 231; State v. Gonzales, 26 Tex. 197; 
 
 Ark. 516, 36 S. W 947. Wilson v. State, 41 Tex. Crim. 115, 
 
 Colorado. — Raymond v. People, 2 51 S. W. 916. 
 
 Colo. App. 329, 30 Pac. 504. ^1 See Lincoln County v. Robertson, 
 
 Florida. — Taylor v. State, 49 Fla. 35 Okla. 616, 130 Pac. 947, in which 
 
 69, 38 So. 380. it was lield that such suits were no 
 
 Idaho. — State i). Corcoran, 7 Idaho part of the duty of the county attor- 
 
 220, 61 Pac. 1034. ney. 
 
 Iowa. — State v. Kovolosky, 92 la. 
 
1118 PEOSECUTING ATTOENETS. [§ 710 
 
 of them either to institute or conduct criminal prosecutions,*' or to 
 bring an action in the name of the state on their relation.** Thus, 
 where a change of venue has been allowed, the prosecutor from the 
 county wherein the indictment was found cannot try the case in 
 the county to which it has been removed ; but such trial must be 
 conducted by the prosecutor of the latter county,*" unless the pros- 
 ecutor from the first county is appointed as an assistant for that 
 purpose.* Such an appointment, however, is usually made in 
 those cases; and services so rendered in another county may be 
 paid for in addition to the prosecutor's regular salary, notwith- 
 standing a statute to the effect that prosecuting attorneys may not 
 receive any fee or reward, for services rendered in cases which 
 it is their duty to prosecute, from any prosecutor or individual.* 
 So, it has been held that where the duties of a prosecuting attor- 
 ney are fixed by the constitution as being confined to a certain 
 judicial district, the legislature can neither authorize nor require 
 him to go outside of it, unless, possibly, by changing the district.* 
 Of course, where a district attorney is the prosecuting officer for 
 several districts or counties, he may act in all of them.* 
 
 § 710. Authority to Incur Expense. — An attorney's author- 
 ity to conduct litigation usually carries with it the authority to in- 
 
 18 Martin v. State, 39 Kan. 576, 18 Montana.— Stsd.e v. Whitworth, 26 
 
 Pac. 472. Mont. 107, 66 Pac. 748. 
 
 18 State V. Shearman, 51 Kan. 686, Nebraska. — Gandy v. State, 27 Neb. 
 
 35 Pac. 455. 707, 43 N. W. 747, 44 N. W. 108. 
 
 20 United States. — Delaware v. Em- Pennsylvania. — Contra. — '■ Com. v. 
 
 erson, 8 Fed. 411. Hippie, 69 Pa. St. 9. 
 
 California. — Herrington v. Santa 1 See supra, § 696 ; Clay County v. 
 
 Clara County, 44 Cal. 496. McGregor, 171 Ind. 634, 17 Ann. Caa. 
 
 Iowa. — Bevington v. Woodbury 333, 87 N. E. 1. 
 
 County, 107 la. 424, 78 N. W. 222, « People v. Fuhrmann, 103 Mich. 
 
 practically overruling State v. Caro- 593, 61 N. W. 865. 
 
 thers, 1 G. Greene 464. 8 Thompson v. Carr, 13 Bush (Ky.) 
 
 Kansas. — Leavenworth County 215. 
 
 Com'rs V. Brewer, 9 Kan. 307. * Moreland v. Marion County, 1 N. 
 
 Kentucky.— Thom^Bon v. Carr, 13 Y. Wkly. Dig. 326, 17 Fed. Caa. No. 
 
 Bush 215; Slayton v. Rogers, 128 Ky. 9,794. 
 106, 107 S. W. 696, 32 Ky. L. Rep. 
 897. 
 
§ 711] PBOSECUTING ATTOENETS. 1119 
 
 cur such reasonable expenses as may be necessary to accomplisli 
 the purposes of his employment.* A like authority, it would seem, 
 exists in the case of prosecuting officers ; and in most jurisdictions 
 such authority is conferred upon these officers by statute.* Thus, 
 it has been held that a prosecuting officer may bind his district for 
 the expense of a detective,'' and an expert witness ; ' but he can 
 only do so to a reasonable extent.^ In some states such expenses 
 can only be incurred by the consent of the county authorities,^" 
 or the presiding judge; ** in others it is held that such ex- 
 pense cannot be incurred in the absence of statutory authority.^* 
 And even where the right of a prosecuting officer to incur expense 
 is recognized, it has been held that he cannot bind the county by 
 an offer of a reward for the apprehension and conviction of per- 
 sons who may commit an offense at some future time.'* 
 
 § 711. Liability. — A recovery cannot be had in an action 
 against a prosecuting attorney for damages alleged to have been 
 caused by him in the trial of a criminal case by browbeating, and 
 by an intemperate, vulgar, and unnecessarily severe cross-exami- 
 nation. Conduct of this character, while reprehensible, can only 
 be remedied by proper objections in the trial court, exception, and 
 appeal.** Where a prosecuting officer also represents his district, 
 or the state, in civil litigation, his liability will be governed by 
 the principles heretofore stated as to lawyers generally,** and the 
 statutes under which he acts.** A federal district attorney, while 
 
 6 See supra, §§ 252, 310. H Gibboney v. Board of Chosen 
 
 8 Fish V. V. S., 36 Fed. 677; Yolo Freeholders, 122 Fed. 46, 58 C. C. A. 
 County V. Joyce, 156 Cal. 429, 105 228 (decided under a New Jersey 
 Pac. 125; Christner v. Hayes County, statute). 
 
 79 Neb. 157, 112 N. W. 347; People ». l« Jones v. Sunflower County, 84 
 
 Grout, 38 Misc. 181, 77 N. Y. S. 321. Miss. 98, 36 So. 188. 
 
 T People ». Grout, 38 Misc. 181, 77 iSMcNeil v. Suffolk County, 114 
 
 N. Y. S. 321. App. Div. 761, 100 N. Y. S. 239. 
 
 • People V. Cayuga County, 22 Misc. l* Ostman v. Bruere, 141 Mo. App. 
 
 616, 50 N. Y. S. 16; People v. Cort- 240, 124 S. W. 1059. 
 land County, 15 N. Y. S. 748. IB See supra, §§ 284-311, 326-330. 
 
 9 People V. Jefferson County, 35 le Gilbert v. Isham, 16 Conn. 525; 
 App. Div. 239, 54 N. Y. S. 782. Butts County v. Bloodworth, 127 Ga. 
 
 WCard V. Dawes County, 71 Neb. 141, 56 S. E. 106; Wilson v. State, 67 
 788, 99 N. W. 662. Kan. 44, 72 Pac. 517. 
 
1120 PEOSECUTING ATTOENET8. [§ 712 
 
 liable for money received by him, or lost by his neglect, is not an- 
 swerable for the fraud or negligence of the marshal." 
 
 Conduct of Trials. 
 
 § 712. Prosecutor Must Act Impartially. — While it is the 
 duty of a prosecuting attorney to use his best endeavor to convict 
 persons guilty of crime, his methods in procuring such conviction 
 m.ust accord with the fair and impartial administration of jus- 
 tice, and he should see that the accused receives a fair trial so far 
 as it is in his power to afford him one.** Here, if anywhere upon 
 earth, the benign maxim of the law, that it is better that ninety- 
 nine guilty persons should escape than that one innocent man 
 should be punished, prevails in all its force." The prosecuting 
 attorney is a quasi- judicial officer, and he and those associated 
 with him should represent public justice exclusively, and stand in- 
 different as between the accused and any private interest ; ^° in- 
 deed, it has been said that it is as much the duty of prosecuting 
 attorneys to see that the accused is not deprived of any constitu- 
 tional or statutory rights, as it is to prosecute him for the crime 
 with which he is charged.' The district attorney represents the 
 state, and the state does not seek victims — it seeks only equal and 
 impartial justice; and the prosecutor should not press upon the 
 jury any deductions from the evidence that are not strictly legiti- 
 mate. When he exceeds this limit, and seeks to influence them 
 by appealing to their prejudices, he is no longer an impartial offi- 
 cer, but a partisan.* So, private counsel must be guided by his 
 own judgment of the evidence in assenting to the discharge of one 
 accused of crime, even though it be contrary to the oath of his 
 client.® The trial court has ample power to protect the defendant 
 
 17 U. S. ». Ingersoll, Crabbe 135, 26 1 State v. Osborne, 54 Ore. 289, 20 
 
 Fed. Cas. No. 15,440. Ann. Cas. 627, 103 Pac. 62. 
 
 "People V. Dane, 59 Mich. 550, 26 2 Com. v. Nicely, 130 Pa. St. 261, 
 
 N. W. 781. 18 Atl. 737; Com. v. Bubnis, 197 Pa. 
 
 19 Shelton v. State, 1 Stew. & P. St. 542, 47 Atl. 748. 
 
 (Ala.) 208; Com. v. Nicely, 130 Pa. 3 Rush v. Cavenaugh, 2 Pa. St. 187. 
 
 St. 261, 18 Atl. 737; Com. v. Bubnis, Public prosecutions are carried on 
 
 ] 97 Pa. St. 542, 47 Atl. 748. by a public ofiBcer, the attorney-gen- 
 
 20 People V. Bemis, 51 Mich. 422, 16 eral, or those who act in his place, 
 N. W. 794. and it ought to be a, clear case to in- 
 
^ 713] 
 
 PEOSECUTIM^G ATTOENEYS. 
 
 1121 
 
 in his rights, and the presumption is that, if requested, it will do 
 so ; and where the prosecuting attorney attempts to take any un- 
 fair advantage of the defendant in the course of the trial, the 
 proper practice is to call the attention of the court to that fact ; * 
 but the prosecutor should not be unduly hampered or embarrassed 
 in conducting the trial. ^ It is improper for the state's counsel to 
 have one who is under arrest brought from the place of arrest to 
 the counsel's office unless the person desires a conference; but, 
 while this practice deserves the censure of the court, it will not be 
 ground for reversal unless it appears that the defendant was in- 
 jured thereby. ° 
 
 § 713. Right of Deputies, Substitutes and Assistants to 
 Conduct Trial. — Deputy prosecuting attorneys, and duly ap- 
 pointed substitutes and assistants,' may conduct the trial of one 
 accused of crime, and, generally, may do any act which the prose- 
 cutor himself might do.' Thus, they may open and close the 
 
 duce gentlemen to engage on behalf 
 of private interests or feelings, in 
 such a prosecution. It ought never to 
 be done against the counsel's own 
 opinion of its merits. Sharswood's 
 Legal Ethics, p. 93. 
 
 4 People V. Gray, 251 111. 431, 96 N. 
 E. 268; Goldsbcrry v. State, 92 Neb. 
 211, 137 N. W. 1116. 
 
 5 Matter of Lyons, 162 Mo. App. 
 6S8, 145 S. W. 844. 
 
 6 State V. Thavanot, 225 Mo. 545, 20 
 Ann. Cas. 1122, 125 S. W. 473. 
 
 The day seems to be distant when 
 prosecuting officers will learn that 
 they are not inquisitors, and that it is 
 no part of their duty to endeavor to 
 extort admissions or confessions from 
 one accused of crime. State v. Hagan, 
 164 Mo. 654, 65 S. W. 249. 
 
 7 See supra, §§ C95-704. 
 
 8 Alabama. — Douglass v. Prowell, 
 130 Ala. 580, 30 So. 498. 
 
 Attys. at L. Vol. II.— 71. 
 
 Florida. — King v. State, 43 Fla. 
 211, 31 So. 254. 
 
 Georgia. — Davis v. State, 11 Ga. 
 App. 10, 74 S. E. 442; HortonK. State, 
 11 Ga. App. 33, 74 S. E. 559. 
 
 Illinois. — Liavin v. Cook County, 
 245 111. 496, 92 N. E. 291. 
 
 Indiana. — Choen v. State, 85 Ind. 
 209. 
 
 Louisiana. — State v. Kirby, 36 La. 
 Ann. 988; State v. Montgomery, 41 
 La. Ann. 1087, 6 So. 803; State v. 
 Moeling, 129 La. 204, 55 So. 764; 
 State V. Britton, 131 La. 877, 60 So. 
 379. 
 
 Massachusetts. — Com. v. Gibbs, 4 
 Gray 146; Com. v. Connecticut River 
 R. Co., 15 Gray 447. 
 
 Missouri. — State v. Wilson, 200 Mo. 
 23, 98 S. W. 68; Appeal of Browne, 09 
 Mo. App. 159 ; State v. Taylor, 93 Mo. 
 App. 327, 67 S. W. 672. 
 
 Nebraska. — Korth v. State, 46 Neb. 
 631, 65 N. W. 792. 
 
1122 
 
 PEOSECUTING ATTOENEYS. 
 
 [§ '^14- 
 
 case,' read the indictment, ^^ and examine witnesses ; *^ and the de- 
 fendant cannot complain thereof.'^ But a special prosecuting attor- 
 ney's powers are confined to the purposes of his appointment.^' 
 
 § 714. Right of Private Counsel to Conduct Trial. — 
 
 In some jurisdictions private counsel ** may not conduct, in the 
 interest of the state, the trial of one charged with the commission 
 of a crime. ^* In other jurisdictions private counsel may assist th& 
 prosecuting attorney; and in some instances such counsel are per- 
 mitted to read the indictment,'® conduct the trial,*'' and open and 
 close the case to the jury.** But the policy of our system of crim- 
 
 Oklahoma. — Canada v. Territory, 12 
 Okla. 409, 72 Pac. 375. 
 
 Texas. — State v. Lackey, 35 Tex. 
 357. 
 
 9 California. — People v. Powell, 87 
 Cal. 348, 25 Pac. 481, 11 L.R.A. 75. 
 
 Iowa. — State v. Novak, 109 la. 717, 
 79 N. W. 465. 
 
 Missouri. — State v. Stark, 72 Mo. 
 37 ; State v. Eobb, 90 Mo. 30, 2 S. W. 
 1; State v. Coleman, 199 Mo. 112, 97 
 S. W. 574; State v. Boyer, 232 Mo. 
 267, 134 S. W. 542. 
 
 Tennessee. — Jarnagin v. State, 10 
 Yerg. 529. 
 
 10 State V. Chocidett, (la.) 136 N. 
 S. W. 1051. 
 
 11 State V. Finley, 245 Mo. 465, 150 
 S W. 1051. 
 
 W State V. Britton, 131 La. 817, 60 
 So. 379. 
 
 15 State V. Maben, 5 Okla. Grim. 581, 
 114 Pac. 1122. 
 
 14 See supra, § 702. 
 
 16 Hayner v. People, 213 111. 142, 72 
 N. E. 792; Gilbert v. People, 121 111. 
 App. 423; State v. Coleman, 199 Mo. 
 112, 97 S. W. 574; State v. Price, 111 
 Mo. App. 423, 85 S. W. 922 ; Arnold v. 
 State, 81 Wis. 278, 51 N. W. 426. 
 
 In Wisconsin private counsel may 
 prosecute an action for assault andi 
 battery. Bartell v. State, 106 Wis.. 
 342, 82 N. W. 142. 
 
 16 State t'. Crafton, 89 la. 109, 55 
 N. W. 257; Galloway v. Com., 4 Ky. 
 L. Rep. 720. 
 
 w Georgia. — Davis v. State, 11 Ga> 
 App. 15, 74 S. E. 442. 
 
 Louisiana. — State v. Mangrum, 35 
 La. Ann. 619; State v. Petrich, 122. 
 La. 127, 47 So. 438; State v. Britton, 
 131 La. 877, 60 So. 379. 
 
 Mississippi. — Byrd v. State, 1 How. 
 247; Carlisle v. State, 73 Miss. 387, 
 19 So. 207. 
 
 rexos.— Taylor v. State, 42 S. W. 
 285. 
 
 Virginia. — Jackson v. Com., 96 Va. 
 107, 30 S. E. 452. 
 
 18 Alabama. — Shelton v. State, 1 
 Stew. & P. 208. 
 
 California. — People v. Strong, 4ff 
 Cal. 302; People v. Murphy, 47 Cal. 
 103. 
 
 Georgia. — Dale P. State, 88 Ga. 552^ 
 15 S. E. 287. 
 
 Idaho. — State v. Williams, 4 IdahO' 
 502, 42 Pac. 511. 
 
 Indiana. — Surber v. State, 99 Ind. 
 71. 
 
§ 715] 
 
 PEOSECTJTING ATTORNEYS, 
 
 1123 
 
 inal jurisprudence requires that the prosecuting attorney, or his 
 duly appointed substitute, should have the active superintendence 
 and management of all criminal trials ; and when private counsel 
 are employed and permitted to aid in the prosecution, the official 
 prosecutor should see that the trial does not degenerate into a pri- 
 vate persecution, and that the administration of the criminal law 
 is not made a vehicle of oppression for the gratification of private 
 malice, or the accomplishment of private gain or advantage.** 
 
 Compensation. 
 
 § 715. Generally. — The compensation of prosecuting attor- 
 neys is provided for by legislation,*' and is confined to the amount 
 so fixed; thus, it has been held that a contract between a county 
 and a prosecuting attorney, whereby it was agreed to pay such at- 
 torney extra compensation for the performance of his official 
 
 Iowa. — Stete V. Helm, 92 la. 540, 61 
 N. W. 246. 
 
 Kansas. — State v. Smith, 50 Kan. 
 69, 31 Pac. 784. 
 
 Kentucky. — Roberts v. Com., 94 Ky. 
 499, 22 S. W. 845; White v. Com., 120 
 Ky. 178, 85 S. W. 753, 27 Ky. L. Rep. 
 561 ; Catron v. Com., 140 Ky. 61, 130 
 S. W. 951. 
 
 Pennsylvania.— Com. v. Eisenhower, 
 ]81 Pa. St. 470, 37 Atl. 521, 59 Am. 
 St. Rep. 670. 
 
 Utah. — People v. Calton, 5 Utah 
 451, 16 Pac. 902. 
 
 19 California. — People v. Blackwell, 
 27 Cal. 66. 
 
 Florida.— Tha^lheim v. State, 38 Fla. 
 169, 20 So. 938. 
 
 Illinois. — Hayner v. People, 213 111. 
 142, 72 N. E. 792. 
 
 Massachusetts. — Com. v. Knapp, 10 
 Pick. 477, 20 Am. Dec. 534; Com. v. 
 Tuck, 20 Pick. 356; Com. v. Williams, 
 2 Cush. 582 ; Com. v. Webster, 5 Cusb. 
 295, 52 Am. Dec. 711; Com. v. Gibbs, 
 4 Gray 146. 
 
 North Dakota. — State v. Kent, 4 N. 
 D. 577, 62 N. W. 631, 27 L.R.A. 686. 
 
 Texas. — Burkhard v. State, 18 Tex. 
 App. 599. 
 
 20Galpin v. Chicago, ]59 111. App. 
 135, affirmed 249 111. 554, 94 N. E. 
 961; State v. Gilbert, 163 Mo. App. 
 679, 147 S. W. 505 ; State v. Romero, 
 (N. M.) 125 Pac. 617; Howth v. 
 Greer, 40 Tex. Civ. App. 552, 90 S. W. 
 211 ; Lattimore v. Tarrant County, 57 
 Tex. Civ. App. 610, 124 S. W. 205. 
 
 Laws Mo. 1871-72, p. 13, abolishing 
 the office of circuit attorney except in 
 the county of St. Louis, and fixing the 
 compensation of prosecuting attor- 
 neys, is a general law, and does not 
 repeal or modify the Acts of 1865-06, 
 p. 14, and 1869, p. 8, fixing the salary 
 of the circuit attorney of St. Louis 
 county. Folk v. St. Louis, 250 Mo. 
 116, 157 S. W. 71. 
 
 Federal district attorneys' compen- 
 sation is provided for by U. S. Rev. 
 Stat. §§ 770, 823, 824, 825, 826, 827 
 (4 Fed. St. Ann. pp. 88-94). 
 
1124 PEOSECUTING ATTOENEYS. [§ 715 
 
 duties, was void.^ Nor can a prosecuting attorney recover com- 
 pensation from third persons for the performance of acts within 
 the scope of his official duty, even though such acts were per- 
 formed at their request, or though they may have expressly prom- 
 ised to pay therefor.^ And it has been held that one who accepts 
 the office of prosecuting attorney when no compensation is pro- 
 ' vided therefor, undertakes to serve gratuitously ; ' but, in such case, 
 a salary subsequently fixed by the legislature will relate back to 
 the time of his induction into office.* Nor can a former prose- 
 cuting attorney recover compensation for services performed by 
 him through the courtesy of his successor, even though such serv- 
 ices consist of attention to unfinished business.' In several juris- 
 dictions it is provided by statute that prosecuting officers may not 
 receive any fee or reward for the performance of their official 
 duties, from or on behalf of any private person ; ® and a like pro- 
 hibition exists as to the payment of deputy, substitute, and assist- 
 ant prosecuting attorneys.' But these provisions do not prevent 
 the employing of a prosecuting attorney to perform, duties other 
 than those imposed upon him as an official, and receiving compen- 
 sation therefor.* Thus, it has been held that the county may re- 
 
 iCobbt;. Scoggin, 85 Ark. 106, 107 E. 601; Arnsparger v. Norman, 101 
 
 S. W. 188; Wilson v. Otoe County, 71 Ky. 208, 40 S. W. 574, 19 Ky. L. Rep. 
 
 Neb. 435, 98 N. W. 1050; McKenna K. 381; Spaulding v. Hill, 115 Ky. 1, 
 
 McHaley, 62 Ore. 1, 123 Pae. 1069. 72 S- W. 307, 24 Ky. L. Rep. 1802; 
 
 8 Cincinnati, S. & C. R. Co. v. Lee, Vastine v. VouUaire, 45 Mo. 504; 
 
 37 Ohio St. 479; Coggesliall v. Conner, Swayne v. Terrell, 20 Tex. Civ. App. 
 
 31 Okla. 113, Ann. Caa. 1913 D 577, 31, 48 S. W. 218; Flynt v. Jones 
 
 120 Pac. 559, 39 L.R.A.(N.S.) 81. County, 20 Tex. Civ. App. 641, 50 S. 
 
 3 Coggesliall V. Conner, 31 Okla. 113, W. 203. 
 
 Ann. Cas. 1913D 577, 120 Pac. 559, 6 Bevington v. Woodbury, 107 la. 
 
 39 L.R.A.(N.S.) 81. 424, 78 N. W. 222; State v. Romero, 
 
 4 State V. Romero, (N. M.) 125 Pac. (N. M.) 125 Pac. 617. 
 
 •617. ' Coggesliall v. Conner, 31 Okla. 113, 
 
 5 Davis V. County, 1 Lane. Bar Ann. Cas. 1913 D 577, 120 Pae. 559, 
 (Pa.) 161. 39 L.R.A.(N.S.) 81. 
 
 As to conflicting claims between ' Lattimore v. Tarrant County, 57 
 
 the incumbent and his predecessor, see Tex. Civ. App. 610, 124 S. W. 205. 
 
 Herrn v. Sharp County, 81 Ark. 33, See also Jones v. Morgan, 67 Cal. 308, 
 
 98 S. W. 704 ; Cole V. McKune, 19 Cal. 7 Pac. 734 ( contract made during 
 
 422; People v. Smyth, 28 Cal. 21; term of office and to be performed 
 
 Bartlett v. Brunson, 115 Ga. 459, 41 S. after the expiration thereof). 
 
716] 
 
 PKOSECUTING ATTORNEYS. 
 
 1125 
 
 tain the district attorney to attend to the prosecution of causes 
 which, on a change of venue being granted, are moved to another 
 county.® 
 
 § 716. Compensation of Deputies, Substitutes and Assist- 
 ants. — In nearly all jurisdictions the compensation of deputy 
 prosecuting attorneys is provided for by statute ; so, also, provision 
 is made for the payment of substitute and assistant prosecutors ; ^^ 
 and it has been held that, in the absence of statutory authority 
 therefor, one appointed as a substitute or assistant prosecuting at- 
 torney is not entitled to compensation.^* The U. S. Rev. Stat. 
 § 365,'^ provides that "no compensation shall hereafter be allowed 
 
 9Bevington v. Woodbury County, 
 107 la. 424, 78 N. W. 222. 
 
 10 United States. — Act of May 8, 
 1896, ch. 252, § 8 (4 Fed. St. Ann. 
 VI). 
 
 Alaiama. — Banks v. State, 96 Ala. 
 41, 11 So. 469; Trapp v. State, 120 
 Ala. 397, 24 So. 1001. 
 
 Arkansas. — Goad v. State, 73 Ark. 
 458, 84 S. W. 638. 
 
 Colorado. — Hinsdale County v. 
 Crump, 18 Colo. App. 59, 70 Pac. 159. 
 
 Georgia. — Mize v. Blalock, 71 Ga. 
 861. 
 
 Indiana. — Tull v. State, 99 Ind. 
 238; Clay County v. McGregor, 171 
 Ind. 634, 17 Ann. Caa. 333, 87 N. E. 1 ; 
 Carroll County v. Pollard, 17 Ind. 
 App. 470, 46 N. E. 1012. 
 
 Iowa.— State v.. Miller, 132 la. 587, 
 109 N. W. 1087. 
 
 Michigan. — Sneed v. People, 38 
 Mich. 248. 
 
 Minnesota. — Mathews v. Lincoln 
 County, 90 Minn. 348, 97 N. W. 101. 
 
 Neirasl-a. — Fuller v. Madison 
 County, 33 Neb. 422, 50 N. W. 255; 
 Sands v. Frontier County, 42 Neb. 
 837, 60 N. W. 1017. 
 
 New YoWc— People v. Neff, 191 N. 
 Y. 286, 84 N. E. 63, affirming 121 
 
 App. Div. 44, 105 N. Y. S. 559; Peo- 
 ple V. Genesee County, 61 App. Div. 
 545, 15 N. Y. Crira. 463, 70 N. Y. S. 
 578, affirmed without opinion, 168 N. 
 Y. 640, 61 N. E. 1133; People v. Coler„ 
 65 App. Div. 217, 72 N. Y. S. 564; 
 People V. Coler, 67 App. Div. 619, 7S 
 N. Y. S. 1114, reversing 35 Misc. 454,. 
 71 N. Y. S. 127. 
 
 Ohio. — State v. Franklin County, 20i 
 Ohio St. 421; State v. Wallace, 24. 
 Ohio St. 597; State v. Hooking Coun- 
 ty, 40 Ohio St. 331; Geauga County 
 V. Osborn, 46 Ohio St. 271, 20 N. 
 E. 333; Fayette County v. State, 60 
 Ohio St. 475, 54 N. E. 519; State v. 
 Moore, 1 Ohio Dee. (Reprint) 506, 10 
 West. L. J. 219; Weldy v. Board of 
 Com'rs, 8 Ohio Dec. (Reprint) 767, » 
 Cine. L. Bui. 313. 
 
 Texas. — Harris County v. Stewart, 
 91 Tex. 133, 41 S. W. 650. 
 
 Wisconsin. — Williams v. Dodge 
 County, 95 Wis. 604, 70 N. W. 821. 
 
 11 Kouns V. Draper, 43 Mo. 225 ; 
 Cuming County v. Tate, 10 Neb. 193, 
 4 N. W. 1044; In re Herring, 10 Kulp 
 (Pa.) 74; State v. Marshall County ,i 
 14 S. D. 149, 84 N. W. 775. 
 
 12 4 Fed. Stat. Ann. 87. 
 
1126 PEOSECTJTINfi ATTORNEYS. [§ 7l7 
 
 to any person, besides the respective district attorneys and assist- 
 ant district attorneys, for services as an attorney or counselor to 
 the United States, or to any branch or department of the govern- 
 ment thereof, except in cases specially authorized by lnw, and then 
 only on the certificate of the attorney-general that such services 
 were actually rendered, and that the same could not be performed 
 by the attorney-general, or solicitor-general, or the officers of the 
 department of justice, or by the district attorneys." It has been 
 well said that substitute or assistant prosecutors should be paid by 
 the state or a subdivision thereof, for it would, indeed, be a dan- 
 gerous policy for private parties to employ and pay private coun- 
 sel, and then have them commissioned by the state as special pub- 
 lic prosecutors, and thus, in the name of the state, empowered to 
 wreak vengeance at the instance of private parties." 
 
 Bemoval. 
 
 § 717. Generally. — Prosecuting attorneys may be removed 
 from office for official misconduct, or other statutory causes, in the 
 same manner as is provided for the removal of other public offi- 
 cers of the same class.^* Statutes providing for such removal are 
 penal in character, especially where the cause of removal consists 
 of the commission of a criminal offense, and must be strictly con- 
 strued ; ^' and where a removal is sought because of the commis- 
 sion of criminal offenses, the respondent cannot be required to 
 testify.^' The charges must be substantiated by at least clear and 
 satisfactory evidence." The statutory method of removal must 
 be followed ; the usual method is the presentation of a petition to 
 the court stating cause for removal, and obtaining an order there- 
 on to show cause why the officer should not be removed, upon the 
 
 13 Coggeshall v. Conner, 31 Okla. 15 Tennant v. Kuhlemeier, 142 la. 
 113, Ann. Cas. 1913 D 577, 120 Pac. 241, 1!) Ann. Cas. 1026, 120 N. W. 
 559, 39 L.R.A.(N.S.) 81. 689. 
 
 14 State V. Hospers, 147 la. 712, 18 Killits v. State, 10 Ohio Cir. Dec. 
 Ann. Caa. 1912 B 754, 126 N. W. 818; 722, 19 Ohio Cir. Ct. 740. 
 
 State V. Eberhart, 116 Minn. 313, "State v. Hospers, 147 la. 712, 
 
 Ann. Cas. 1913 B 785, 133 N. W. 857, Ann. Cas. 1912B 754, 126 N. W. 
 39 L.E.A.(N.S.) 788; Graham v. 818. 
 Stein, 4 Ohio Cir. Dec. 140, 18 Ohio 
 Cir. Ct. 770. 
 
■§ 718] PEOSECUTING ATTOBNBTS. 1127 
 
 Teturn of which a hearing may be had in the manner prescribed 
 by statute, or, should the statute be silent on this subject, in the 
 manner provided for similar hearings, or as ordered by the 
 •court ; ^' and in some instances removal is effected by information 
 in the nature of quo warranto,*^ or by proceedings for impeach- 
 Taent.*' Where the office is appointive, the power to remove usu- 
 ally lies with the person who has the power of appointment ; thus, 
 it has been held that the President may remove a federal district 
 attorney from office before the expiration of his term, and that 
 the appointment and confirmation by the Senate of his successor 
 is a ratification of such removal.^ But the executive officer of a 
 territory cannot remove a district attorney from office therein in 
 -the absence of statutory authority.* The order of removal may be 
 reviewed ; and, in accordance with the local practice, a writ of er- 
 ror, an appeal, or a writ of certiorari may lie for this purpose* 
 But charges which directly involve the qualifications of a prose- 
 .cuting officer as a fit person to hold public office, involve also the 
 Tights and interests of the public, and the decision of the lower 
 •court will not be reversed if there is any legal and substantial evi- 
 •dence tending to support it.* 
 
 § 718. Grounds for Removal. — A prosecuting attorney may 
 ibe removed for misfeasance, malfeasance, or nonfeasance.* Thus, 
 
 18 Mills V. Pulaski Cir. Ct. Hardin S California.— Ex p. Hayter, 16 Cal. 
 .<Ky.) ]39. App. 211, 136 Pac. 370. 
 
 19 State V. Foster, 32 Kan. 14, 765, Kansas.State v. Foster, 32 Kan. 
 ■3 Pac. 534; Howard v. Burns, 14 S. 14, 765, 3 Pac. 534. 
 
 D. 383, 85 N. W. 920. Kentucky.— Cora. v. Rowe, 112 Ky. 
 
 20 Com. V. Rowe, 112 Ky. 482, 66 S. 482, 66 S. W. 29, 23 Ky. h. Rep. 1718. 
 "W. 29, 23 Ky. L. Rep. 1718. Minnesota. — State v. Eberhart, 116 
 
 1 Parsons v. V. S., 30 Ct. CI. 222. Minn. .^13, Ann. Cas. ]913 B 785, 133 
 
 2 Territory v. Mann, 16 N. M. 211, N. W. 857, 39 L.R.A.(N.S.) 788. 
 
 114 Pac. 362. Nevada. — In re Maestretti, 30 Nev. 
 
 3 State r. Eberhart, 116 Minn. 313, 187, 93 Pac. 1004. 
 
 Ann. Cas. 1913 B 785, 133 N. W. 857, OWo.— Graham v. Stein, 4 Ohio Cir. 
 
 SS L.R.A.(N.S.) 788; Killits v. State, Dec. 340, 18 Ohio Cir. Ct. 770. 
 
 10 Ohio Cir. Dec. 722, 19 Ohio Cir. Ct. yeatos.— Trigg v. State, 49 Tex. 645. 
 
 740 ; Trigg I'. State, 49 Tex. 643. That public sentiment is opposed to 
 
 4 State V. Eberhart, 116 Minn. 313, the enforcement of a law is no defense 
 Ann. Cas. 1913 B 785, 133 N. W. 857, to a proceeding for the removal of a 
 :39 L.R.A.(N.S.) 788. prosecuting attorney because of his 
 
1128 PEOSECUTING ATTORNEYS. [§ 7l8- 
 
 He may be removed where it appears that he has accepted a bribe,' 
 or acted in the interest of the defendant/ or for gross immorality,' 
 or general incompetence.' So, conviction of crime may be a suffi- 
 cient ground for removal ; " but conviction is not essential, even 
 though the alleged cause of removal be the commission of a 
 crime.'* The fact that a prosecuting officer has been indicted for 
 a criminal offense. is not, of itself, sufficient ground for his re- 
 moval; but that fact may be taken into consideration with other 
 acts of official misconduct in determining whether or not he should 
 be removed.'^ Nor will a removal be ordered because of the prose- 
 cutor's ignorance of the law.*' A certain degree of discretion is 
 confided to the prosecuting attorney in instituting and conducting 
 criminal prosecutions, and he cannot be removed because of his 
 conduct therein, in the absence of an abuse of such discretion, or 
 a clear showing of corruption or incompetence.** The moral con- 
 viction that the law has been, or is being, violated, in this or that 
 respect, at particular times and places, goes but a little way in 
 making out a case for the removal of one of the officers charged 
 with its enforcement. Such moral conviction should be supple- 
 rnented by evidence showing that the officer possessed, or with rea- 
 sonable effort might have obtained, the information and the means- 
 neglect in this respect. State v. Fos- H Graham v. Stein, 4 Ohio Cir. Dec 
 tcr, 32 Kan. 14, 765, 3 Pac. 534. 340, 18 Ohio Cir. Ct. 770. 
 
 fiCom. V. Rowe, 112 Ky. 482, 66 S. instate v. Eberhart, 116 Minn. 313, 
 
 W. 29, 23 Ky. L. Rep. 1718. Ann. Gas. 1913 B 785, 133 N. W. 857,- 
 
 "> Kentuclcy.— Com. v. Thomas, 9 39 L.R.A.(N.S.) 788. 
 Ky. L. Rep. 289 (abstract). IS State v. Eberhart, 116 Minn. 313,. 
 
 Minnesota.— &ta.te v. Wedge, 24 Ann. Cas. 1913 B 785, 133 N. W. 857, 
 Minn. 150. 39 L.R.A.(N.S.) 788. 
 
 North DaJcota.— In re Voss, 11 N. l* State r. Hospers, 147 la. 7l!i,- 
 
 D. 540, 90 N. W. 15. Ann. Cas. 1912B 754, 126 N. W. 818. 
 
 Ohio. — Graham v. Stein, 4 Ohio Cir. The loioa mulct law {Code, § 2446), 
 
 Dec. 140, 18 Ohio Cir. Ct. 770. providing for the removal of a county 
 
 Texas. — Trigg v. State, 49 Tex. 645. attorney who fails to enforce the pro- 
 
 8 Moore v. Strickling, 46 W. Va. visions thereof, refers only to the levy 
 515, 33 S. E. 274, 50 L.R.A. 279. and collection of the mulct tax, and 
 
 9 State V. Eberhart^ 116 Minn. 313, does not contemplate failure to pro- 
 Ann. Cas. 1913 B 785, 133 N. W. 857, ceed under the prohibitory law. Ten- 
 39 L.R.A. (N.S.) 788. nant v. Kuhlemeier, 142 la. 241, 19" 
 
 10 
 
 Ex p. Diggs, 50 Ala. 78. Ann. Cas. 1026, 120 N. W. 689. 
 
§ 718] PBOSECUTING ATTORNEYS. 1129 
 
 required to secure convictions before a court and jury, and that 
 he closed his eyes to his duty and misused or neglected his oppor- 
 tunities. '° A district attorney is not required to assume the func- 
 tions of a detective and undertake, personally, to ferret out the 
 facts connected •with, a crime, or the names of the witnesses 
 thereto.*^ 
 
 16 state V. Marrero, 132 La. 109, 81 is State v. Marrero, 132 La. 109, 61 
 
 So. 136. So. 136. 
 
CHAPTEE XXVIII. 
 
 ATTORNEY-GENERAL. 
 
 Oenerally. 
 § 719. Origin of Office. 
 
 720. In England. 
 
 721. In Canada. 
 
 United States Attorney-General. 
 
 722. In General. 
 
 723. Superintendence of District Attorneys, Marshals, and Clerka. 
 
 724. As 'Counsel for the Government. 
 
 725. Opinion of Attorney-General. 
 
 726. To Whom Opinion Shall Be Given. 
 
 727. Statement of Question. 
 
 728. Effect of Opinion. 
 
 729. Substitutes and Assistants. 
 
 730. Special Counsel. 
 
 State Attorneys-Oeneral. 
 
 731. Appointment, Election, Qualifications, etc. 
 
 732. Common-Law Powers. 
 
 733. Constitutional and Statutory Powers and Duties Generally. 
 
 734. Discretion. 
 
 735. Employment of Special Counsel. 
 
 736. Opinion of State Attorney-General. 
 
 737. Assistant Attorneys-General. 
 
 738. Compensation. 
 
 As State Law Officer. 
 
 739. Appearance for State. 
 
 740. Protection of Public Rights. 
 
 741. Rights Which May Be Protected Generally. 
 
 742. Enforcement of Public Trusts and Charities. 
 
 743. Abatement of Public Nuisances. 
 
 744. Collection and Assessment of Taxes. 
 
 745. Suits by or against State Officers. 
 
 1130 
 
§§ 719, 720] ATTOENET-GENEEAL. 1131 
 
 § 746. Suits by or against Municipal or Quasi-Municipal Corporations, Etc. 
 747.' Suits by or against Private Corporations. 
 
 748. Necessity of Request to Act for State. 
 
 749. Pleadings. 
 
 750. Costs and Expenses. 
 
 Control of Litigation. 
 
 751. State Litigation under Control of Attorney-GeneraL 
 
 752. Dismissal of Suit. 
 
 753. Compromise. 
 
 Criminal Prosecutions. 
 
 754. Authority to Conduct Criminal Trials. 
 
 755. Control of Trial. 
 
 Generally. 
 
 § 719. Origin of Office. — The office of attorney-general is 
 of very early origin in England, though the first patent of appoint- 
 ment which can be found seems to be one dated 1472.* At com- 
 mon law the attorney-general was the chief representative of the 
 sovereign in the courts, and it was his duty to appear for and 
 prosecute in behalf of the crown any matters — criminal as well as 
 civil. It was said by Mr. Blackstone : * "He represents the sov- 
 ereign, in whose name all criminal processes issue, and his power 
 to prosecute all criminal offenses is unquestioned at common law." 
 It would seem, therefore, that the attorney-general may exercise 
 common-law powers unless the constitution or statute law, either 
 expressly or by reasonable intendment, forbids the exercise there- 
 of ; ' and under the colonial government the attorney-general re- 
 ceived his appointment from the governor of the colony, and exer- 
 cised his duties under the common law.* 
 
 § 720. In England. — The office of attorney-general in Eng- 
 land is conferred by patent and is held during pleasure.* The 
 
 1 4 Reeves's Hist. Eng. Law, c. 26, * People v. Kramer, 33 Misc. 209, 6S 
 p. ISi. N. Y. S. 383. 
 
 2 3 Bl. Comm. 27. 6 7 Halsbury's Laws of England, 
 
 3 People V. Miner, 2 Lans. (N. Y.) p. 72. 
 396. 
 
1132 ATTOENEY-GENEBAL. [§ 730 
 
 attorney-general is a member of the ministry, but not of the cabi- 
 net.® Thus, he represents the crown for all forensic purposes,'' and 
 may file an information in the nature of a quo warranto,' or enter 
 a nolle prosequi^ enforce and protect public charities, institute 
 proceedings to restrain and abate public nuisances and purpres- 
 tures, and prevent other public wrongs.^" He is also summoned to 
 attend the House of Lords at the beginning of every Parliament,^' 
 and he acts as prosecutor both for the House of Lords and for the 
 House of Commons,*^ and he also performs administrative func- 
 tions in connection with the grant of letters patent for inventions, 
 the discretion of the crown being exercised through him ; *' and 
 should he be absent or incapacitated, the duties of his office devolve 
 upon the solicitor-general.** "The attorney-general is the head 
 of the bar, and has precedence over all king's counsel. Generally 
 speaking, however, he has no greater legal rights than other mem- 
 bers of the bar, in so far that he or any person appointed to act 
 for him must conform to the rules of the court in which the pro- 
 ceeding in which he is engaged takes place, the courts exercising 
 over him the same authority which they exercise over every other 
 suitor or his advocate. He would not be permitted to prosecute 
 any proceeding which was merely vexatious, or which had no 
 legal object." *' But it seems that the court cannot compel the 
 
 8 7 Halsbury's Laws of England, (Eng.) 304; Atty.-Gen. v. Garner, 
 
 p. 75. [1907] 2 K. B. (Eng.) 480; Atty.- 
 
 1 7 Halsbury's Laws of England, pp. Gen. v. Cambridge Consumers Gas Co., 
 
 71-74. See also Eex v. Marsden, 3 L. E. 4 Ch. (Eng.) 71. 
 Burr. (Eng.) 1812; Eex i). Wilkes, 4 117 Halsbury's Laws of England, 
 
 "Burr. (Eng.) 2570; Kex. v. Austen, 9 p. 73. 
 
 Price ( Eng. ) 142 ; Atty.-Gen. v. 13 7 Halsbury's Laws of England, 
 
 Brown, 1 Swanst. (Eng.) 294. And p. 74. 
 
 see Alexander on the Administration IS 7 Halsbury's Laws of England, 
 
 of Justice, pp. 127-135. p. 75. 
 
 8 See Rex «. Wilkes, 4 Burr. (Eng.) 1*7 Halsbury's Laws of England, 
 2570. p. 71. See also Rex v. Wilkes, 4 Burr. 
 
 9 7 Halsbury's Laws of England, (Eng.) 2527, 2554. 
 
 p. 74. 15 7 Halsbury's Laws of England, 
 
 10 9 Halsbury's Laws of England, p. 72. See also Reg. v. Prosser, 11 
 p. 292. SeealsoAtty.-Gen.u. Sheffield Beav. (Eng.) 306, 18 L. J. Ch. 35, 13 
 Gas Consumers Co., 3 De 6. M. & G. Jur. 71. 
 
§§ 721, 722] ATTOENEY-GE]SrEKAL. 1133 
 
 attorney-general to be examined as a witness ; *° nor can the court 
 review the exercise of his discretion/' although prohibition will 
 lie against him.^' During his occupancy of the office, the attorney- 
 general may not engage in private practice. ^° 
 
 § 721. In Canada. — The Dominion attorney-general exer- 
 cises the same powers and duties which belong to the office of the 
 attorney-general of England, so far as they are applicable to the 
 Dominion of Canada.^" Proceedings to forfeit a Dominion statu- 
 tory charter are properly brought by the Dominion attorney-gen- 
 eral.^ So it is he, and not the provincial attorney-general, who 
 must proceed to set aside a patent for an invention.^ 
 
 The provincial attorney-general represents the crown in the 
 provincial courts in respect to provincial rights,* and also, in 
 certain cases, in respect to Dominion rights ; thus, he may sue 
 on behalf of the public, even in respect of the violation of rights 
 created by an act of the Dominion parliaments* So, sums be- 
 longing to the Dominion government may be recovered at the 
 suit of the provincial attorney-general.* The discretion of the 
 attorney-general is not subject to the control of the court.® 
 
 United States Attorney-General. 
 
 § 722. In General. — The U. S. Eev. Stat., § 346, provides 
 that there shall be at the seat of government an executive depart- 
 
 16 7 Halsbury's Laws of England, 2 Mousseau v. Bate, 27 L. C. Jur. 
 p. 73. 353, 3 Cartw. Cas. 341. But see Reg. 
 
 17 London County Council v. Atty.- v. Pattee, 5 Ont. Pr. 292, wherein it 
 Gen. [1902] A. C. (Eng.) 165; Reg. v. was held that a fiat for the writ of 
 Prosser, 11 Beav. (Eng.) 306, 18 L. J. scire fapias may he granted by the 
 Ch. 35, 13 Jur. 71 ; Ex p. Newton, 4 attorney-general of Ontario when the 
 El. & Bl. 869, 82 E. C. L. 869, dis- proceeding is on behalf of a private 
 approving dictum in Rex v. Wilkes, 4 party. 
 
 Burr. (Eng.) 2551. 3 Atty. -Gen. v. Hargrove, 11 Ont.. L. 
 
 18 7 Halsbury's Laws of England, Rep. 530. 
 
 p. 71. * Atty. -Gen. v. Niagara Falls Inter- 
 im 7 Halsbury's Laws of England, national Bridge Co., 20 Grant Ch. 
 
 p. 72. (U. C.) 34, 1 Cartw. Cas. 813. 
 
 20 See the preceding section. 5 Monk v. Ouimet, 19 L. C. Jur. 71. 
 
 1 Dominion Salvage & Wrecking Co. « Atty.-Gen. v. Hargrave, 11 Ont. 
 
 V. Atty.-Gen., 21 Can. Sup. Ct. 72. L. Rep. 530. 
 
1134 
 
 ATTOElfEY-GENEEAI,. 
 
 [§ 722 
 
 ment to be known as the department of justice^ and an attorney- 
 general, who shall be the head thereof.' It is made the duty of 
 the attorney-general to conduct and argue suits and writs of error 
 and appeals in the Supreme Court, and suits in the Court of Claims 
 in which the United States is interested ; and the attorney-general 
 may, whenever he deems it for the interest of the United States, 
 either in person conduct and argue any case in any court of the 
 United States in which the United States is interested, or may 
 direct the solicitor-general or any officer of the department of 
 justice to do so.' So, he is obliged to give his advice and opinion 
 upon questions of law, whenever required by the President, or 
 the head of any executive department.' The relation between the 
 
 7 4 Fed. Stat. Annot. 763. 
 
 8 U. S. Rev. Stat., § 359, 4 Fed. St. 
 Ann. 768. 
 
 See also infra, § 726. 
 
 9 U. S. Rev. Stat. §§ 354, 357, 358, 
 361 (4 Fed. St. Ann. 766-769). 
 
 See also infra, § 726. 
 
 The attorney-general's duties are 
 stated in 6 Op. Atty.-Gen. 326, 347 ; 5 
 Am. L. Reg. 65, as follows : "1. Upon 
 the great questions of law arising in 
 the administration of public affairs, 
 lie gives opinions officially, both to the 
 President and to the heads of depart- 
 ments. 
 
 "2. As one of the confidential po- 
 litical counselors of the President, it 
 may be supposed that he advises more 
 particularly in regard to the legal 
 incidents of the appointments or other 
 acts of the government. 
 
 "3. He conducts directly all suits 
 in the Supreme Court in which the 
 United States is concerned. 
 
 "4. He advises or directs the so- 
 licitor as to suits in which the United 
 States is concerned, pending in the 
 inferior courts of the United States. 
 
 "5. He directs and prosecutes ap- 
 peals in the great questions of land 
 
 title, which involve the proprietorship 
 of all the soil in the successive incre- 
 ments of territory acquired by the 
 United States. 
 
 "6. He performs occasional duty, 
 from time to time, in the protection 
 of the interests of the United States, 
 in matters of adjudication under 
 treaties with foreign powers. 
 
 "7. He passes upon the title of all 
 interests in lands acquired by th& 
 United States, by purchase, for any of 
 the local uses of government. 
 
 "8. He communicates to Congress, 
 such information as they require, 
 appertaining to the duties and busi- 
 ness of his department. 
 
 "In all these particulars he is,, 
 either directly or indirectly, and by 
 statute either express or implied, the- 
 administrative head, under the Presi- 
 dent, of the legal business of the 
 government. So far the administra- 
 tive power and the correspondent ad- 
 ministrative responsibility exist, and 
 they require modification in details, 
 only in order to be completely adapted 
 to the theory of departmental 
 organization." 
 
723] 
 
 ATTOENEY-GENEKAL, 
 
 1135 
 
 attorney-general and any of the departments at whose request he 
 gives advice, or performs other services, is that of attorney and 
 client.^" The attorney-general also has authority to designate 
 prisons for the confinement of persons convicted in the United 
 States courts, where there is no suitable jail or penitentiary for 
 that purpose in the place of their conviction, and houses of refuge 
 for juvenile offenders.*' It is also his duty to examine the title 
 to all land purchased by the government for public purposes, and 
 no payment can be made therefor without his certificate as to 
 the validity of the title.'* But the attorney-general cannot act as 
 arbitrator between the government and a private individual ; '' 
 nor will he exercise appellate jurisdiction over departmental de- 
 cisions depending upon mixed questions of law and fact.'* 
 
 § 723. Superintendence of District Attorneys, Marshals, 
 and Clerks. — The United States attorney-general exercises gen- 
 eral superintendence and direction over district attorneys and 
 marshals as to the manner of discharging their respective duties,'^ 
 
 10 5 Op. Atty.-Gen. 577; 15 Op. 
 Atty.-Gen. 574; 20 Op. Atty.-Gen. 
 702; 25 Op. Atty.-Gen. 94, 524. 
 
 11 U. S. Rev. Stat., §§ 5546, 5547, 
 5549, 5550 (6 Fed. St. Ann. pp. 41- 
 47) ; Ex p. Karstondiok, 93 U. S. 395, 
 23 U. S. (L. ed.) 889; In re Wilson, 
 18 Fed. 33; U. S. v. Greenwald, 64 
 Fed. 6. 
 
 Practice. — "The prevalent practice 
 under these provisions has obtained, 
 in accordance with which the attorney- 
 general notifies the different courts, 
 through the district attorney, of the 
 designation that he has made for the 
 different districts from time to time, 
 and procures to be entered upon the 
 minutes of the courts in each district 
 an order showing the designation 
 which is in force." Gardes i. V. S., 
 87 Fed. 184. 
 
 As to the making of contracts witli 
 the authorities of a state or territorial 
 
 institution for the confinement of 
 prisoners, see Lewis County v. V. S., 
 77 Fed. 732 ; Avery v. Pima County, 7 
 Ariz. 26, 60 Pac. 702. 
 
 Consular Courts. — Prior to the 
 amendment of U. S. Rev. Stat., § 5546, 
 by Act of March 3, 1901, its provisions 
 were held inapplicable to consular 
 courts (19 Op. Atty.-Gen. 377) ; and 
 the section as so amended has been 
 held not to warrant the confinement 
 in a prison in the Philippine Islands 
 of one convicted in a consular court. 
 24 Op. Atty.-Gen. 549. 
 
 12 U. S. Rev. Stat. 355, 6 Fed. St. 
 Ann. 695; 6 Op. Atty.-Gen. 338; 
 Weed r. U. S., 82 Fed. 414. And see 
 8 Op. Atty.-Gen. 405. 
 
 18 1 Op. Atty.-Gen. 209. 
 
 14 22 Op. Atty.-Gen. 342. 
 
 15 U. S. Rev. Stat., § 362 ; Confisca- 
 tion Cases, 7 Wall. 454, 19 U. S. (L. 
 ed.) 196. And see dictum in U. S. 
 
1136 ATTOENET-GENEKAX,. [§ 724 
 
 and he may send a district attorney, or any other officer of the 
 department of justice, to any state or district of the United States 
 to attend to the public interests,^^ or he may direct district at- 
 torneys to follow cases on appeal from their own districts into 
 the Circuit Court of Appeals,''' and he may also employ counsel to 
 assist them to discharge their duties.'* He may also authorize the 
 district attorney to employ a clerk or stenographer for special 
 purposes.'^ So, the attorney-general has general supervisory 
 powers over the accounts of district attorneys, marshals, clerks, 
 and other officers of the federal courts,^" and his decision of any 
 point connected with this subject is conclusive, and not subject 
 to collateral attack by the courts ; * but he has no authority to 
 revise or alter counsel fees allowed to district attorneys by the 
 court pursuant to U. S. Eev. Stat., § 824.^ 
 
 § 724. As Counsel for the Government. — In all cases to 
 which the United States is a party, the government may be heard 
 through the attorney-general; nor can counsel be heard in op- 
 position on behalf of any department of the government; but 
 the court may hear other counsel for the purpose of obtaining 
 the benefit of a full discussion of the matter in hand.* It is the 
 uniform practice for the clerk of the Supreme Court to enter 
 the appearance of the attorney-general in all cases to which the 
 
 V. San Jacinto Tin Co., 125 U. S. 273, " Garter v. U. S., 31 Ct. CI. 344. 
 
 8 S. Ct. 850, 31 U. S. (L. ed.) 747. W McDonald v. U. S., 66 Fed. 255, 
 
 See also Mullan v. U. S., 118 U. S. 271, reversed on other grounds, 72 Fed. 
 
 6 S. Ct. 1041, 30 U. S. (L. ed.) 170. 898, 44 U. S. App. 461, 21 C. C. A. 
 
 16 U. S. Kev. Stat., § 367; U. S. «. 347; U. S. v. Denison, 80 Fed. 370, 49 
 Fleming, 80 Fed. 372, 49 U. S. App. U. S. App. 352, 25 C. C. A. 496; Swift 
 354, 25 C. C. A. 498. v. U. S., 128 Fed. 763. 
 
 The correspondence between the 20 u. S. Eev. Stat., § 368. 
 
 attorney-general and a district attor- l Scliloss v. Hewlett, 81 Ala. 266, 1 
 
 ney representing the United States is So. 263. 
 
 confidential in its nature, and cannot 2 u. S. v. Waters, 133 U. S. 208, 10 
 
 be made available by a third person. S. Ct. 249, 33 U. S. (L. ed.) 594; 
 
 U. S. V. Six Lots of Ground, 1 Woods Bird v. U. S., 45 Fed. 110; Hillborn 
 
 234, 27 Fed. Cas. No. 16,299. i . U. S., 27 Ct. CI. 547. 
 
 17 Garter v. U. S., 31 Ct. CI. 344. 3 The Gray Jacket, 5 Wall. 370, 18 
 See also U. S. v. Hopewell, 51 Fed. U. S. (L. ed.) 646. 
 
 708, 5 U. S. App. 137, 2 C. C. A. 510. 
 
% 724] ATTOENEY-GENEKAL, 1137 
 
 United States is a party^* The attorney-general may determine 
 when and for what purpose legal proceedings shall be instituted 
 ■on behalf of the United States, and has the full management and 
 •control of such proceedings ; ° and while there is no statute specifi- 
 cally empowering him to bring actions and suits in the name of 
 the United States generally, that power resides in him as the 
 head of the department of justice.* Thus, the attorney-general 
 may file a bill in behalf of the government to annul a patent on 
 the ground of fraud or mistake, where the United States has an 
 interest in or is under an obligation in respect to the relief 
 sought.' And the court will entertain a bill, to vacate the selec- 
 tion of land by a state, having the signature of the attorney- 
 general subscribed by his authority.' So, the attorney-general 
 may intervene on behalf of the United States in a suit between 
 states in which the general government is interested, and may 
 introduce evidence and take part in the argument without mak- 
 ing the United States a party for or against whom judgment can 
 be rendered.' The attorney-general may also dismiss, compromise, 
 •or discontinue suits in which the government is interested,^" and 
 this is true even as to proceedings brought under a statute which 
 provides that the informer shall share in the proceeds thereof 
 •equally with the United States, and notwithstanding the opposi- 
 tion of such informer.*' But the attorney-general is not author- 
 ized to waive the exemption of the United States from judicial 
 process, or to submit the United States or its property to the 
 jurisdiction of the court in a suit brought against its oflScers.'^ 
 
 4Farrar v. U. S., 3 Pet. 459, 7 U. Germania Iron Co. v. U. S., 58 Fed. 
 
 S. (L. ed.) 741. 334, 19 U. S. App. 10, 7 C. C. A. 256. 
 
 5 U. S. Rev. Stat. §§ 359, 363, 366. 8 u. S. v. MuUan, 10 Fed. 785. 
 
 And see U. S. v. Winston, 170 U. S. 9 Florida v. Georgia, 17 How. 478, 
 
 .522, IS S. Ct. 701, 42 U. S. (L. ed.) 15 U. S. (L. ed.) 181. 
 ]]30. l"*22 Op. Atty.-Gen. 491; 23 Op. 
 
 8 U. S. V. San Jacinto Tin Co., 125 Atty.-Gen. 507. 
 U. S. 273, 279, 8 S. Ct. 850, 31 U. S. " Confiscation Cases, 7 Wall. 454, 
 
 (L. ed.) 747, 749. 19 U. S. (L. ed.) 196. 
 
 7U. S. V. San Jacinto Tin Co., 125 12 Stanley v. Schwalby, 162 U. S. 
 
 U. S. 273, S S. Ct. 850, 31 U. S. (L. 255, 16 S. Ct. 754, 40 U. S. (L. ed.) 
 
 .ed.) 747; U. S. v. Beebe, 127 U. S. 338, 960. 
 .8 S. Ct. 1083, 32 U. S. (L. ed.) 121; 
 Attys. at L. Vol. II.— 72. 
 
1138 ATTOENEY-GENEEAL. [§§ 725, 72(> 
 
 § 725. Opinion of Attorney-General, — The attorney-gen- 
 eral is only required to give his opinion on questions of law ; 
 he need not decide questions of fact,^* although he is not re- 
 stricted to purely legal questions in advising the President.^* The 
 weight of evidence and the credibility of witnesses are not ques- 
 tions to be considered by the attorney-general ; '* nor will he give 
 an opinion as to the reasonableness of attorney fees,** or as to 
 the advisability of changes in the law,''' or on hypothetical ques- 
 tions, or those not presently arising. *' 'Nor will the attorney- 
 general give an opinion where the question involved is disputable, 
 and is or might be raised in a pending suit,'® or as to questions 
 which are essentially judicial in character, and properly deter- 
 minable in court ; *" or as to the laws of a foreign nation.* Nor will 
 he examine or approve codes of rules, forms of applications,, 
 bonds, etc.^ 
 
 § 726. To Whom Opinion Shall Be Given. — The attorney- 
 general is only requireid to give his opinion to the President and 
 the heads of governmental departments.* He will not give offi- 
 cial opinions on matters submitted to him by or for the guidance- 
 is 1 Op. Atty.-Gen. 347; 3 Op. Atty.- Atty.-Gen. 50; 11 Op. Atty.-Gen. 189,- 
 Gen. 309; 5 Op. Atty.-Gen. 626; 7 Op. 13 Op. Atty.-Gen. 531; 19 Op. Atty.- 
 Atty.-Gen. 494; Beltzhoover's Claim, Gen. 331, 414; 20 Op. Atty.-Gen. 440,. 
 10 Op. Atty.-Gen. 267 ; Dennistoun'a 583, 602, 723, 728, 729 ; 21 Op. Atty.- 
 Case, 12 Op. Atty.-Gen. 206; Adair's Gen. 106, 109, 167, 186, 320, 457, 509, 
 Claim, U Op. Atty.-Gen. 54; Case of 510, 568; 22 Op. Atty.-Gen. 77; 23- 
 Steambtrat Josepli Pierce, 14 Op. Op. Atty.-Gen. 330, 582; 24 Op. Atty.- 
 Atty.-Gen. 541; 18 Op. Atty.-Gen. Gen. 118, 556; 25 Op. Atty.-Gen.' 94,. 
 487; 19 Op. Atty.-Gen. 672, 696; 20 369, 543. 
 
 Op. Atty.-Gen. 253, 384, 459, 487, 494, 19 13 Op. Atty.-Gen. 160; 23 Op. 
 
 530, 590, 614, 697, 740, 742; 21 Op. Atty.-Gen. 221. 
 
 Atty.-Gen. 96, 129, 133, ?4n. ?5^ 260, 80 19 Op. Atty.-Gen. 56, 671; 2(> 
 
 454, 594; 23 Op. Atty-Gen. 231; 25 Op. Atty.-Gen. 210, 277, 314, 524, 539, 
 
 Op. Atty.-Gen. 183. 673; 21 Op. Atty.-Gen. 369, 5.57; 22 
 
 1* Const. U. S., Art.ll, § 2, cli. 1; Op. Atty.-Gen. 181; 24 Op. Atty.-Gen- 
 
 23 Op. Atty.-Gen. 360. 69; 25 Op. Atty.-Gen. 97. 
 
 16 21 Op. Atty.-Gen. 58. l 21 Op. Atty.-Gen. 377. 
 
 16 20 Op. Atty.-Gen. 620. 2 20 Op. Atty.-Gen. 738. 
 
 " 19 Op. Atty.-Gen. 598. 8 See supra, § 722. 
 
 "9 Op. Atty.-Gen. 421; 10 Op. 
 
726] 
 
 ATTOENEY-GENEEAL. 
 
 1139 
 
 of subordinate officers,* but will confine himself to opinions on 
 such questions of law as are needed by the head of a department 
 for the administration thereof.* And where an executive order 
 required the attorney-general to give an opinion in cases where 
 the heads of departments and the civil service commission could 
 not agree as to whether an examination was required for a certain 
 position, it was held that no opinion would be given until there 
 had been an actual conference and disagreement.* 
 
 The attorney-general has no authority, officially, to advise or 
 furnish an opinion to Congress or to congressional committees," 
 even at the request of the head of a department, no question of 
 departmental administration being involved.' Nor are private 
 individuals entitled to' the official opinion or advice of the attorney- 
 general on matters of private concern, or respecting their rights 
 with regard to the government.' 
 
 *1 Op. Atty.-Gen. 211; 6 Op. Atty.- 
 Gen. 21; 10 Op. Atty.-Gen. 458; 11 
 Op. Atty.-Gen. 4; 18 Op. Atty.-Gen. 
 59; 19 Op. Atty.-Gen. 556; 20 Op. 
 Atty.-Gen. 251, 608, 724; 21 Op. Atty.- 
 Gen. 174. 
 
 6 10 Op. Atty.-Gen. 220; 19 Op. 
 Atty.-Gen. 7, 695; 20 Op. Atty.-Gen. 
 50, 158, 178, 312, 383, 420, 500, 536, 
 588, 714; 21 Op. Atty.-Gen. 6, 219; 
 25 Op. Atty.-Gen. 584. 
 
 Questions Involving Payments. — 
 Since the taking effect of the Act of 
 July 31, 1894, c. 174, 8, providing that 
 "The head of any executive depart- 
 ment . . . may apply for, and 
 the comptroller of the treasury shall 
 render his decision upon any question 
 involving a payment to be made by 
 [him] or under [him], vphich decision 
 . . . shall govern the auditor and 
 the comptroller of the treasury in 
 passing upon tlie account containing 
 said disbursement," the opinion of the 
 attorney-general should not be asked 
 in such cases except in matters of 
 
 great importance. 21 Op. Atty.-Gen. 
 178, 405, 530; 22 Op. Atty.-Gen. 581;^ 
 
 23 Op. Atty.-Gen. 1, 2, 86, 431, 586 j 
 
 24 Op. Atty.-Gcn. 85, 553; 25 Op. 
 Atty.-Gen. 185, 614. 
 
 But if the question is of importance 
 apart from the mere payment in- 
 volved, the attorney-general will give 
 his official opinion (25 Op. Atty.-Gen. 
 270 ) , and such decision is binding on 
 the officers of the treasury department. 
 
 25 Op. Atty.-Gen. 301. 
 
 6 25 Op. Atty.-Gen. 492. 
 
 7 1 Op. Atty.-Gcn. 253, 335 ; 2 Op. 
 Atty.-Gen. 499; 5 Op. Atty.-Gen. 561; 
 10 Op. Atty.-Gen. 164; 12 Op. Atty.- 
 Gen. 544; 14 Op. Atty.-Gen, 17; 15 
 Op. Atty.-Gen. 475; 18 Op. Atty.-Gen. 
 87. 
 
 8 14 Op. Atty.-Gen. 177; 15 Op. 
 Atty.-Gen. 138; 17 Op. Atty.-Gen. 357. 
 
 » 1 Op. Atty.-Gen. 492; 6 Op. Atty.- 
 Gen. 147, 335; 9 Op. Atty.-Gen. 355; 
 10 Op. Atty.-Gen. 122; 20 Op. Atty.- 
 Gcn. 463, 465, 667. 
 
1140 ATTOENET-GENEEAL. [§§ 727, 728 
 
 § 727. Statement of Question. — A request for the official 
 opinion of the attorney-general should be accompanied by a state- 
 ment of the material facts of the case.'" All the facts upon which 
 the question turns should be presented for his consideration/^ 
 as only such facts as are set forth or admitted, by the head of the 
 department requesting his opinion, will be considered.'^ The 
 request should also state the precise question to be determined,^' 
 and it should appear that the United States has an interest there- 
 in.** But these rules may be waived where the public interests 
 require a prompt decision,'* or where government transactions 
 are involved, and the facts are undisputed.'® 
 
 § 728. Effect of Opinion. -, — In giving his advice and opinion 
 on questions of law, the attorney-general's duties are quasi-jadicial. 
 His opinions are an official interpretation of the law, and in 
 many cases his decision is conclusive, not only with respect to 
 the action of public officers in administrative matters, but also 
 as to many questions which involve private rights, inasmuch as 
 parties having concerns with the government cannot, in many 
 instances, bring a controverted matter before a court of law." 
 Therefore, the opinions of successive attorneys-general have come 
 to constitute a body of legal precedents and exposition, having 
 authority the same irt kind, if not the same in degree, with de- 
 cisions of the courts of justice," and administrative officers should 
 regard them as law until they are withdrawn or overruled by 
 
 10 9 Op.Atty.-Gen. 82; Beltzhoover's " 19 Op. Atty.-Gen. 396; 20 Op. 
 
 Claim, 10 Op. Atty.-Gen. 267; Den- Atty.-Gen. 220, 249, 258, 699, 711; 21 
 
 nistoun's Case, 12 Op. Atty.-Gen, 206; Op. Atty.-Gen. 179, 201; 22 Op. Atty.- 
 
 •Gidding's Claim, 14 Op. Atty.-Gen. Gen. 351, 498; 23 Op. Atty.-Gen. 92, 
 
 367; 18 Op. Atty.-Gen. 487; 19 Op. 472; 24 Op. Atty.-Gen. 59. 
 
 Atty.-Gen. 396; 20 Op. Atty.-Gen. 220, M2 Op. Atty.-Gen. 311. 
 
 270, 493, 526, 614, 640, 699,. 711; 21 15 Northern Pae. E. Land Grant, 21 
 
 Op. Atty.-Gen. 36, 220, 506; 22 Op. Op. Atty.-Gen. 486. 
 
 Atty.-Gen. 85; 23 Op. Atty.-Gen. 178; 16 22 Op. Atty.-Gen. 477. 
 
 24 Op. Atty.-Gen. 102. 17 6 Op. Atty.-Gen. 326, 333, 5 Am. 
 
 11 16 Op. Atty.-Gen. 94. L. Reg. 65. 
 
 12 Denniatoun's Case, 12 Op.,Atty.- 18 6 Op. Atty.-Gen. 326, 334, 5 Am. 
 
 iGen. 206; Adair's Claim, 14 Op. L. Reg. 65; 21 Op. Atty.-Gen. 264; 24 
 
 Atty.-Gen. 54. Atty.-Gen. 55. 
 
§§ 729, 730] ATTORNEY-GENERAL. 1141 
 
 the courts.'* It must be conceded, however, that the attorney- 
 general's opinion is not conclusive — that is, it is not binding on 
 the President, or even on the head of a department ; ^^ but it is 
 generally safer and better, for departmental heads at least, to 
 adopt it.' The attorney-general has no control over the action 
 of the head of a department at whose request and to whom an 
 opinion is given, nor can he with propriety express any judgment 
 concerning the disposition of the matter to which the opinion 
 relates, that being wholly within the administrative sphere of the 
 department.^ 
 
 § 729. Substitutes and Assistants. — It is provided by act 
 of Congress that there shall be in the department of justice an 
 officer learned in the law, to assist the attorney-general in the 
 performance of his duties, called the solicitor-general, who shall 
 be appointed by the President, by and with the advice and con- 
 sent of the Senate. In case of a vacancy in the office of attorney- 
 general, or of his absence or disability, the solicitor-general shall 
 have power to exercise all the duties of that office.' It is also 
 provided that there shall be in the department of justice three 
 officers, learned in the law, called assistant attorneys-general, who 
 shall be appointed by the President, by and with the advice and 
 consent of the Senate, and shall assist the attorney-general and 
 solicitor-general in the performance of their duties ; * and that to 
 facilitate the speedy disposition of the cases in the Court of Claims, 
 there shall be appointed, in the manner prescribed by law for the 
 appointment of assistant attorneys-general, one additional assist- 
 ant attorney-general of the United States.* 
 
 § 730. Special Counsel. — ; The attorney-general of the United 
 States may employ special counsel to represent the government, 
 
 19 20 Op. Atty.-Gen. 648, 654, 719. 3 U. S. Eev. Stat., § 347 (4 Fed. 
 
 20 Des Moines Improvement, 7 Op. Stat. Annot. 763 ) . 
 
 Atty.-Gen. 691; Collins' Line of iV. S. Eev. Stat., § 348 (4 Fed. 
 
 Steamships, 9 Op. Atty.-Gen. 32. Stat. Annot. 763). 
 
 1 Collins' Line of Steamships, 9 Op. 5 Act March 3, 1891, Ch. 538, 26 
 Atty.-Gen. 32. Stat. L. 854 (4 Fed. Stat. Annot. 
 
 2 17 Op. Atty.-Gen. 332. 764). 
 
1142 ATTOENEY-QENEEAL. [§ 731 
 
 or to assist those on whom this duty regularly devolves,* and fix 
 their compensation ; ' and the propriety of employing an at- 
 torney for a private party to assist in the prosecution of a suit 
 by the United States, in the public interest, is a question which 
 is addressed to the judgment and discretion of the attorney- 
 general.' Where special counsel have been employed, it will be 
 assumed that the statutes authorizing such employment have been 
 complied with.' But the attorney-general cannot make an ap- 
 pointment retroactive, so that it will embrace a period prior to 
 the date of the appointment.^* Nor can he employ a district at- 
 torney to perform services in his own district on behalf of the 
 United States, but not pertaining to his office ; nor can a district 
 attorney recover compensation from the government for services 
 rendered under such an employment.*^ A special assistant to the 
 attorney-general is not an officer of the department of justice,'^ 
 and his compensation must be confined to the terms of his ap- 
 pointment.** He is not entitled to compensation for voluntary 
 services rendered prior to his appointment.** 
 
 State Attorneys-General. 
 
 § 731. Appointment, Election, Qualifications, Etc. — 
 
 The appointment or election, and the qualification, eligibility, 
 and tenure of office of state attorneys-general are provided for by 
 
 6 U. S. Rev. Stat., §§ 363-366 jU.S.T. That a merchants' association as- 
 Crosthwaite, 168 U. S. 375, 18 S. Ct. sured the attorney -general that, if 
 107, 42 U. S. fL. ed.) 507, reversing necessary, it would furnish funds to 
 30 Ct. CI. 300; U. S. I). Winston, 170 U. compensate a special assistant ap- 
 S. 522, 18 S. Ct. 701, 42 U. S. (L. ed.) pointed to investigate frauds in the 
 1130; U. S. V. Herron, 170 U S. 527, importation of Japanese silks, does 
 18 S. Ct. 703, 42 U. ts. (L. ed.) 1132; not disqualify an appointee who looks 
 U. S. V. Garter, 170 U. S. 527, 18 S. to the United States for compensation. 
 Ct. 703, 42 U. S. (L. ed) 1133, affirm- V. S. v. Rosenthal, 121 Fed. 862. 
 
 ing 31 Ct CI. 344; Lee v. U. S., 45 Ct. 9 Garter r. U. S., 31 Ct. CI. 344. 
 
 CI. 57. 10 Lee v. U. S., 45 Ct. CI. 57. 
 
 7 Lee V. U. S., 45 Ct. CI. 57. " Smith v. V. S., 26 Ct. CI. 568. 
 8U. S. V. Chandler-Dunbar Water 12 U. S. v. Rosenthal, 121 Fed. 862; 
 
 Power Co., 152 Fed. 25, 81 C. C. A. Lee v. U. S., 45 Ct. CI. 57. 
 221, (fffirmed 209 U. S. 447, 28 S. Ct. 13 Lee v. U. S., 45 Ct. CI. 57. 
 
 579, 52 U. S. (L. ed.) 881. "Lee v. V. S., 45 Ct. CI. 5,7. 
 
§ 732] ATTOKNEY-GENERAL. 1143 
 
 constitutional and statutory provisions in each state, and the local 
 laws must be consulted in this respect. Where the power of ap- 
 pointment is vested in the state legislature, its failure to exercise 
 such power does not vest it elsewhere ; ^* and where the mode of 
 filling the office of attorney-general is established by the Consti- 
 tution, and does not require the approval or concurrence of either 
 branch of the legislature, a substitute attorney-general cannot be 
 appointed by the legislature. *° In Missouri the attorney-general, 
 and certain other officers, must be male citizens.^'' And in ]S[evada 
 it was held that a person holding the office of United States dis- 
 trict attorney, on the day of election, was incapable of being 
 chosen to the office of attorney-general of the state.^' In some 
 states the attorney-general may not engage in private practice 
 during the term of office ; this, however, is because of constitu- 
 tional or statutory restrictions, in the absence of which there would 
 seem to be no objection to this practice," excepting, of course, 
 that he may not represent conflicting interests any more than a 
 district attorney,^" or any other lawyer, may do so.* 
 
 § 732. Common-Law Powers. — A state attorney-general, 
 in many jurisdictions, may exercise all the common-law powers 
 incident to and inherent in his office, in addition to such authority 
 as may be expressly conferred upon him by the state constitution 
 and general laws.^ The prerogatives which pertain to the crown 
 
 15 Collins V. State, 8 Ind. 344. Illinois. — Hunt v. Chicago Horse & 
 
 "State V. Morris, Houst. Cr. Cas. Dummy R. Co., 321 111. 638, 13 N. E. 
 
 (Del.) 124. 176, a;?irmin5 20 111. App. 282. 
 
 17 State 0. Hostetter, 137 Mo. 636, Massachusetts. — Parker r. May, 5 
 39 S. W. 270, 59 Am. St. Eep. 515, 38 Cush. 336; Atty.-Geu. v. Williams, J74 
 L.R.A. 208. Mass. 476, 55 N. E. 77, 47 L.R.A. 314. 
 
 18 State V. Clarke, 3 Nev. 566. Minnesota. — State v. Robinson, 101 
 
 19 Masten v. Indiana Car & Foundry Minn. 277, 112 N. W. 269, 20 L.R.A. 
 Co., 25 Ind. App. 175, 57 N. E. 148. (N.S.) 1127. 
 
 20 See supra, §§ 693, 700. Mississippi. — State v. Key, 93 Miss. 
 
 1 See supra, §§ 174-182. 115, 46 So. 75. 
 
 2 United States.^St. Louis & S. F. Neio Hampshire. — Fletcher v. Merri- 
 R. Co. V. Hadley, 161 Fed. 419. mack County, 71 N. H. 96, 51 Atl. 271. 
 
 California. — People v. Oakland New York. — People v. Kramer, 33 
 
 Water Front Co., 118 Cal. 234, 50 Pac. Misc. 209, 68 N. Y. S. 383; People v. 
 305. Miner, 2 Lans. 396. 
 
1144 
 
 ATTOENEY-GENEEAL. 
 
 [§ 73a 
 
 in England are here vested in the people, and the necessity for 
 the existence of a public officer charged with the protection of 
 public rights and the enforcement of public duties by proper 
 proceedings in the courts of justice is just as imperative here 
 as it is there.' Indeed, it has been said that a duty required by 
 the common law is as much a duty required by law as though it 
 were imposed by the express mandate of a statute.* So, it has 
 been held that the power of the attorney-general to institute a 
 proceeding for the enforcement of a public charity is a common- 
 law power, incident to the office, and does not depend for its 
 exercise upon the requirement of the governor, or either branch 
 
 West Virginia. — State v. Ehrlick, 
 65 W. Va. 700, 64 S. E. 935, 23 L.R.A. 
 (N.S.) 691. 
 
 In People v. Miner, 2 Lans. (N. Y.) 
 396, MuUin, J., said: "Most, if not 
 all, of the colonies appointed attor- 
 neys-general, and they were under- 
 stood to be clothed with nearly all the 
 powers of the attorneys-general of 
 England; and as these powers have 
 never been defined, we must go back 
 to the common law in order to ascer- 
 tain them. The attorney-general had 
 the power, and it was his duty: 
 
 "1st. To prosecute all actions neces- 
 sary for the protection and defense of 
 the property and revenues of the 
 crown. 
 
 "2d. By information, to bring cer- 
 tain classes of persons accused of 
 crimes and misdemeanors to trial. 
 
 "3d. By scire facias, to revoke and 
 annul grants made by the crown im- 
 properly, or when forfeited by the 
 grantee thereof. 
 
 "4th. By information, to recover 
 money or other chattels, or damages 
 for wrongs committed on the land or 
 other possessions of the crown. 
 
 "5th. By writ of quo warranto, to 
 determine the right of him who claims 
 or usurps any office, franchise, or 
 
 liberty, and to vacate the charter or 
 annul the existence of a corporation, 
 for violations of its charter, or for 
 omitting to exercise its corporate 
 powers. 
 
 "6th. By writ of mandamus, to 
 compel the admission of an officer 
 duly chosen to his office, and to compel 
 his restoration when illegally ousted. 
 
 "7th. By information to chancery, 
 to enforce trusts, and to prevent pub- 
 lic nuisances and the abuse of trust 
 powers. 
 
 "8th. By proceedings in rem, to re- 
 cover property to which the crown 
 may be entitled by forfeiture for trea- 
 son, and property for which there is 
 no other legal owner, such as wrecks, 
 treasure trove, etc. 
 
 "9th. And in certain cases, by in- 
 formation in chancery, for the pro- 
 tection of the rights of lunatics and 
 others who are under the protection 
 of the crown." 
 
 s Hunt V. Chicago Horse & Dummy 
 R. Co., 20 111. App. 282, affirmed 121 
 111. 638, 13 N. E. 176. See also State 
 V. Gleason, 12 Fla. 225. 
 
 * Hunt V. Chicago Horse & Dummy 
 E. Co., 20 111. App. 282, affirmed 121 
 111. 638, 13 N. E. 176. 
 
§ 733] ATTOENEY-GESTEEAL, 1145 
 
 of the legislature." Of course, the legislature may abridge, alter, 
 or increase the powers of the attorney-general ; ^ but the statutory 
 grant of certain powers will not deprive the attorney-general of 
 those belonging to his office at common law, unless the statute 
 either expressly or by reasonable intendment forbade the exercise 
 of powers not thus expressly conferred.'' Nor will a statute im- 
 posing specific duties upon a district attorney, exclude the right 
 of the attorney-general to act with respect thereto, should the 
 public interests require such action ; ' but the legislature cannot 
 impose upon the attorney-general powers which the constitution 
 expressly confers on county and district attorneys.^ In some 
 states, however, it is held that the powers of an attorney-general 
 are confined to those granted by the constitution and local laws.'"* 
 
 § 733. Constitutional and Statutory Powers and Duties 
 Generally. — The constitutions and statutes of the several states 
 regulate and define the powers and duties of attorneys-general, 
 and these are so varied that an examination of the local laws be- 
 comes indispensable in most instances.'' In the absence of proof 
 to the contrary, it is the legal presumption that an attorney- 
 general will do his duty, and that he will act with strict im- 
 partiality.*^ Unless it is otherwise provided by the constitution, 
 the legislature may abridge, enlarge, or alter the attorney-general's 
 powers and duties,'^ but it cannot impose upon him a duty which 
 is foreign to the nature of his office, nor. is he obliged to perform 
 such duties even though the legislature should prescribe them.'* 
 
 B Parker v. May, 5 Cush. (Mass.) 28 Wash. 488, 68 Pac. 946, 70 Pac. 
 
 336. 114. 
 
 6 People V. Santa Clara Lumber Co., 9 State v. Moore, 57 Tex. 307. 
 55 Misc. 507, 106 N. Y. S. 624, re- 10 See the following section. 
 versed on another point 126 App. Div. n See the following sections of this 
 616, 110 N. Y. S. 280. chapter. 
 
 7 People V. Miner, 2 Lans. (N. Y.) instate v. Gleason, 12 Fla. 190; 
 396. People v. Central Cross-Town E. Co., 
 
 estate v. Robinson, 101 Minn. 277, 21 Hun (N. Y.) 476; People v. Atty.- 
 112 N. W. 269, 20 L.E.A.(N.S.) 1127. Gen., 22 Barb. (N. Y.) 114. 
 Contra State v. Seattle Gas, etc., Co., is See the preceding section, note 6. 
 
 11 Love V. Baehr, 47 Cal. 364. 
 
1146 ATTOENEY-GENEEAL. [§ 734 
 
 In some jurisdictions the common-law authority of the attorney- 
 general ** is denied, and it is held that he has only such powers 
 as are conferred by the constitution and statutes of the state,*' 
 and also that his statutory powers cannot be varied or enlarged by 
 usage." Thus, it has been held that a contract made with the 
 attorney-general is void, unless he is expressly or impliedly au- 
 thorized by statute to make such contract.*' 
 
 § 734. Discretion. — An attorney-general is entitled to exer- 
 cise his discretion in matters of public concern in many instances, 
 and is not subject to the control of the court in this respect.*' 
 Thus, as a general rule, the duty of filing an information in the 
 nature of a quo warranto against one holding public office, to 
 inquire into his title to the same, rests upon the attorney-general, 
 and the authority so vested cannot be delegated by him to an- 
 other, or even cast upon the court. ^^ Nor will the supreme court 
 review the discretion of the attorney-general in refusing to file 
 such an information, where it is not clearly abused, or where the 
 proceeding could not benefit the relator.^* So it has been held 
 that he has the sole power to sue in the name of the state, and 
 ■on his refusal to do so the governor cannot sue.* And while a 
 mandamus will lie to compel the attorney-general to act or decide, 
 the free exercise of his discretion will not be interfered with, and 
 the party injured thereby is left to his remedy by review.* So, 
 
 16 See the preceding section. firming 8 Hun 334 ; People v. Ballard, 
 
 16 Railroad Tax Cases, 136 Fed. 233 134 N. Y. 269, 32 N. E. 54, 17 L.E.A. 
 (decided under the laws of Arkan- 737, reversing 56 Hun 125, 8 N. Y. S. 
 
 saa) ; State v. Seattle Gas, etc., Co., gig; Candee v. Cunneen, 92 App. Div. 
 28 Wash. 488, 68 Pac. 946, 70 Pac. 7I, 86 N. Y. S. 723 ; Thompson t'. Wat- 
 11*- son, 48 Ohio St. 552, 31 N. E. 742. See 
 
 17 Hord V. State, 167 Ind. 622, 79 N. ^j^^ g^ate v. Dover, 9 N. H. 468. 
 E. 916. 
 
 18 Julian V. State, 122 Ind. 68, 23 N. 
 E. 690. 
 
 19 State V. Gleason, 12 Fla. 190; 
 State V. Bryan, 50 Fla. 293, 39 So. « People «. Atty.-Gen., 41 Mich. 728, 
 
 929; People v. Central Cross-Town R. ^ ^- ^- 2'^^- 
 
 Co., 21 Hun (N. Y.) 476; People v. ^ Henry v. State, 87 Miss. 1, 39 So. 
 
 Atty.-Gen., 22 Barb. (N. Y.) 114; 856. 
 
 People V. Fairchild, 67 N. Y. 334, af- S People v. Kosendale, 76 Hun 103, 
 
 «0 State V. Bryan, 50 Fla. 293, 39 
 So. 929; Phillips V. Atty.-Gen., 107 
 Mich. 087, 133 N. W. 830. 
 
§ 735] ATTOENEY-GENEKAL. 1147 
 
 the power of the court to compel the attorney-general to grant 
 leave to commence a suit, will be exercised only where an abuse 
 of his discretion is extreme and clearly indefensible.' But the 
 official discretion of the attorney-general is not interfered with 
 by restraining him from proceeding with the enforcement of an 
 unconstitutional statute.* And in some instances duties are im- 
 posed upon the attorney-general with respect to which he has no 
 ■discretion, and, therefore, the court may compel their performance 
 by mandamus.^ 
 
 § 735. Employment of Special Counsel. — In most juris- 
 dictions the attorney-general is authorized, expressly or implied- 
 ly, by statute to employ special counsel to assist him in the per- 
 formance of certain official duties.® The employment of such 
 counsel, in order to bind the state, must be made in the manner, 
 and for the purposes, specified in the statute ; '' and the counsel 
 so employed cannot serve after the expiration of the official term 
 of the attorney-general.' The right to employ special counsel 
 does not involve a delegation of power to create a new office.* 
 
 27 N. Y. S. 837, affirmed 142 IST. Y. Louisiana.— State v. Russell, 26 La. 
 
 126, 36 N. E. 806. Ann. 68. 
 
 3 Lamb v. Webb, 151 Cal. 451, 91 MassachMsetts. — McQuesten r. Atty.- 
 Pac. 102, 646; Cheetham v. McCor- Gen., 187 Mass. 185, 72 X. E. 965. 
 luick, 178 Pa. St. 186, 35 Atl. 631. Mississippi.— State i. Mayes, 28 
 
 4 Ex p. Young, 209 U. S. 123, 14 Miss. 706. 
 
 Ann. Cas. 764, 28 S. Ct. 441, 52 U. S. New York.— Kirby v. State, 68 Misc. 
 
 <L. ed.) 714, 13 L.R.A.(N.S.) 932. 626, 125 N. Y. S. 742. 
 
 5 State?). Berry, 3 Gil. (Minn.) 190. South Dakota.— State v. Becker, 3 
 
 6 California.— To\and v. Ventura S. D. 29, 51 N. W. 1018. 
 
 County, 135 Cal. 412, 67 Pac. 498. JTeajas.— Terrell v. Sparks, 104 Tex. 
 
 Indiana.— State v. Denny, 67 Ind. 191, 135 S. W. 519. 
 
 148. 7 Julian v. State, 122 Ind. 68, 23 N. 
 
 Kansas. — In re Gilson, 34 Kan. 641 , E. 690; Atty.-Gen. v. Continental 
 
 8 Pac. 763; State v. Nield, 4 Kan. Life Ins. Co., 88 N. Y. 572; People v. 
 
 App. 626, 45 Pac. 623. Metropolitan Telephone & Telegraph 
 
 Kentucky.— Rogers v. Bradley, 100 Co., 64 How. Pr. (N. Y.) 66, 11 Abb. 
 
 Ky. 344, 38 S. W. 501, 19 Ky. L. Rep. N. Cas. 304. 
 
 114; Com. v. Louisville Property Co., 8 Hord v. State, 167 Ind. 622, 79 N. 
 
 141 Ky. 731, 133 S. W. 759; Coutler E. 916. 
 
 r. Denny, 67 S. W. 65, 23 Ky. L. Rep. 9 State v. Becker, 3 S. D. 29, 51 N. 
 
 1619. W. 1018. 
 
1148 ATTOENEY-GENEEAL. [§§ 736, 737 
 
 In the absence of statutory authority, it has been held that an 
 attorney-general has no power to employ special counsel at the 
 expense of the state, ^^ although it seems that counsel may be per- 
 mitted to aid him, at his request, without compensation.*^ 
 
 § 736. Opinion of State Attorney-General. — In some states 
 it is made the duty of the attorney-general to furnish state officers 
 with an opinion touching their duties,** and it has been said that 
 the courts should adhere to the construction given by the attorney- 
 general's department to statutes regulating the compensation of 
 county and district attorneys.*' So, the rule that the advice of 
 counsel is a complete defense in an action for malicious prose- 
 cution,** is especially applicable as to a prosecution which was 
 instituted on the advice of the attorney-general of the state.** 
 But the official opinion of the attorney-general can constitute no 
 legal justification, in any other respect, for any act done in pur- 
 suance of it.** 
 
 § 737. Assistant Attorneys-General. — Provision is made 
 in practically all states for the appointment of assistants to the 
 attorney-general.*'' Such appointment is not subject to collateral 
 attack,*' but it will be presumed that it was regularly made, and 
 
 le People v. Talmage, 6 Cal. 256; 18 State v. Brady (Tex.) 114 S. W. 
 
 Julian V. State, 122 Ind. 68, 23 N. E. 895. 
 
 690 ; Julian v. State, 140 Ind. 581, 39 1* See supra, §§ 369-377. 
 
 N. E. 923 ; Bradford v. State, 7 Neb. 16 Gilbertson c. Fuller, 40 Minn. 
 
 109. See also Hendrick v. Posey, 104 413, 42 N. W. 203. 
 
 Ky. S, 45 S. W. 525, 46 S. W. 702, 20 16 Dodd v. State, 18 Ind. 56; Com. v. 
 
 Ky. L. Rep. 350; Sims i'. Com., 116 Norman, (Ky.) 50 S. W. 225. 
 
 Ky. 1, 74 S. W. 1097, 25 Ky. L. Rep. " Hord v. State, 167 Ind. 622, 79 N. 
 
 282; Atty.-Gen. v. Continental Life E. 916; Ray v. James, (Ky.) 112 S. 
 
 Ins. Co., 88 N. Y. 571. W. 641; Townsend v. Oneonta C. & R. 
 
 "Com. V. Knapp, 10 Pick. (Mass.) S. R. Co., 41 Misc. 295, 84 N. Y. S. 
 
 477, 20 Am. Dec. 534. 117 ; Terrell v. Sparks, 104 Tex. 191, 
 
 12 Dodd V. State, 18 Ind. 56. 135 S. W. 519. 
 
 See supra, §§ 725-728, as to the "Crawford v. State, 355 Ind. 692, 
 
 opinion of the federal attorney-gen- 57 N. E. 931; Mikesell v. Wilson 
 
 «ral. County, 82 Kan. 502, 108 Pac. 829. 
 
§§ 738, 739] ATTOENEY-GENEEAL. 1149 
 
 the certificate of appointment is prima facie sufficient to establish 
 the right of the appointee to represent the state.^' 
 
 § 738. Compensation. — The compensation of attorneys- 
 general is usually fixed by statute under constitutional authority,^" 
 and where the office is a constitutional one, the legislature cannot 
 usually increase, diminish, or withhold the compensation of the 
 incumbent; but, in the absence of constitutional restriction, it 
 seems that the attorney-general's compensation is subject to leg- 
 islative regulation even during his term of office.^ The compen- 
 sation of deputy, substitute, and assistant attorneys-general is 
 similarly provided for.^ It is usual to provide that the attorney- 
 general, and his deputies and assistants, shall receive no com- 
 pensation other than that provided for by the legislature ; ' but it 
 has been held that provisions of this character do not prohibit 
 the attorney-general from recovering certain fees, in the nature 
 of taxable costs, in addition to the salary provided for him.* So, 
 it has been held that if an attorney-general chooses to perform 
 services not incumbent on him by virtue of his office, at the bidding 
 of the legislature, it may compensate him therefor, even if the 
 law providing for such compensation be enacted during his term 
 of office.* 
 
 As State Law Officer. 
 
 § 739. Appearance for State. — The attorney-general of a 
 state is its principal law officer. His authority is coextensive 
 with the public legal affairs of the whole community,® and it is 
 
 "State V. Jepson, 76 Kan. 644, 92 E. 707; State v. Maynard, 35 Wash. 
 
 Pae. 600. 168, 76 Pae. 937. 
 
 20 State V. Denny, 67 Ind. 148; 4 Chesapeake & 0. R. Co. v. Com., 
 
 State V. Thompson, 36 Mo. 66; Com. 100 Ky. 373, 38 S. W. 506, 18 Ky. L. 
 
 V. Field, 84 Va. 26, 3 S. E. 882. Rep. 828 ; Hogg v. State, 40 Tex. 
 
 ISee Blair v. Marye, 80 Va. 485; Crim. 109, 48 S. W. 580; Then v. 
 
 Field V. Auditor, 83 Va. 882, 3 S. E. Com., 77 Va. 289. 
 
 707. ' Love v. Baehr, 47 Cal. 364. 
 
 « State V. Eggers, 33 Nev. 535, 112 6 Indiana. — Parker v. State, 133 
 
 Pae. 699. Ind. 178, 32 N. E. 836, 33 N. E. 119, 
 
 8 Field V. Auditor, 83 Va. 882, 3 S. 18 L.R.A. 567. 
 
1150 
 
 ATTORNEY-GENERAL. 
 
 [§ 739 
 
 his duty to prosecute or defend all causes, either generally, or in 
 the supreme court of the state, to which the state may be a partyJ 
 His power to appear for the state before any "tribunal" authorizes 
 him to go before a grand jury.' In some jurisdictions the court 
 will not recognize any attorney, other than the attorney-general, 
 as the representative of the people, unless he appears with the 
 consent or approval of the attorney-general ; * and it has been 
 held that it is the duty of the supreme court, when an adjudica- 
 tion sought will seriously affect the general public, to procure 
 his appearance.^" So, the attorney-general may appear in an 
 action brought by a private individual against public officers to 
 test the validity of a statute, and wherein the state is merely a 
 
 Louisiana. — Succession of Fletcher, 
 12 La. Ann. 498. 
 
 Michigan. — Babcock v. Hanselraan, 
 56 Mich. 27, 22 N. W. 99; Frey v. 
 Michie, 68 Mich. 323, 36 N. W. 184. 
 
 Montana. — State v. First Judicial 
 District Court, 22 Mont. 25, 55 Pac. 
 916. 
 
 Nebraska. — State v. Fremont, E. & 
 M. V. E. Co., 22 Neb. 313, 35 N. W. 
 118. 
 
 New York. — See People v. Kramer, 
 33 Misc. 209, 68 N. Y. S. 383. 
 
 'J Alatama. — Ex p. State, 113 Ala. 
 85, 21 So. 210. 
 
 California. — People v. Pacheco, 29 
 Cal. 210. 
 
 Florida. — State v. Gleason, 12 Fla. 
 190, 225. 
 
 Idaho. — State v. Miles, 11 Idaho 
 784, 83 Pac. 697. 
 
 Iowa. — State v. Fleming, 13 la. 443 ; 
 State !•. Grimmell, 116 la. 596, 88 N. 
 W. 342. 
 
 Kentucky. — Sims r. Com., 116 Ky. 
 1, 74 S. W. 1097. 
 
 Louisiana. — State f. State Banlc, 5 
 Mart. N. S. 327; State v. Hackley, 
 319 La. 482, 44 So. 272. 
 
 Missouri.- 
 
 -State V. Zachritz, 1G6 
 
 * 
 
 Mo. 307, 65 S. W. 999, 89 Am. St. 
 Rep. 711. See also St. Louis & S. F. 
 R. Co. V. Hadley, 161 Fed. 419. 
 
 Nebraska. — State v. Pacific Express 
 Co., 80 Neb. 823, 115 N. W. 619, 18 
 L.R.A.(N.S.) 664; In re Creighton's 
 Estate, 91 Neb. 654, Ann. Cas. 1913D 
 128, 136 N. W. 1001. 
 
 Nevada. — State v. California Min. 
 Co., 13 Nev. 203. 
 
 Ohio. — State v. Preble County, 6 
 Ohio Dec. 268. 
 
 South Dakota. — State v. Marshall 
 County, 14 S. D. 149, 84 N. W. 775. 
 
 Texas. — State v. Southern Pac. R. 
 Co., 24 Tex. 80. 
 
 Wyoming. — State v. Cornwell, 14 
 Wyo. 526, 85 Pac. 977. 
 
 8 Cosson V. Bradshaw, (la.) 141 N. 
 W. 1062. 
 
 9 People V. Pacheco, 29 Cal. 210; 
 People V. Navarre, 22 Mich. 1 ; Bab- 
 cock f. Hanselman, 56 Mich. 27, 22 N. 
 W. 99 ; Frey V. Miehie, 68 Mich. 323, 
 36 N. W. 184. 
 
 10 Parker v. State, 132 Ind. 419, 31 
 N. E. 1114. See also Matter of Co- 
 operative Law Co., 198 N. Y. 479, 39 
 Ann. Cas. 879, 92 N. E. 15, 139 Am. 
 St. Rep. 839, 32 L.R.A.(N.S.) 55. 
 
§ 740] 
 
 ATTOENEY-GENERAL. 
 
 1151 
 
 nominal party ; '^ and he may also appear in an action, even 
 though the state is not a party thereto, if the adjudication there- 
 of might seriously affect the general public ; *^ but, in such case, 
 the attorney-general appears as a friend of the court, and not as. 
 the representative of either party to the suit,^' and has only the 
 authority of other amid curim}* His authority ends, of course, 
 with the expiration of his term of office,*^ and his successor may 
 then represent the state without an order of substitution, as his 
 duty to do so is one which pertains to the office and not to the 
 individual.'* On a contest as to the right of an attorney-general 
 to appear, he is entitled to the same presumptions as are accorded 
 to other lawyers in this respect." 
 
 § 740. Protection of Public Rights. — As the representative 
 of the state, an attorney-general is empowered to bring any action 
 which he deems to be necessary for the protection of the public 
 interests. *' His authority in this respect is necessarily implied 
 
 11 Parker v. State, 132 Ind. 419, 31 
 N. E. 1114. 
 
 12 Parker v. State, 132 Ind. 419, 31 
 N. E. 1114; Parker v. State, 133 Ind. 
 178, 32 N. E. 836, 33 N. E. 119, 18 
 L.R.A. 567. 
 
 13 Parker v. State, 133 Ind. 178, 32 
 N. E. 836, 33 N. E. 119, 18 L.R.A. 
 567. 
 
 14 See supra, §§ 90, 91. 
 
 15 Hendriek v. Posey, 104 Ky. 8, 45 
 S. W. 525, 46 S. W. 702, 20 Ky. L. 
 Rep. 359. 
 
 16 Nance v. People, 25 Colo. 252, 54 
 Pac. 631; People v. Carson, 78 Hun 
 544, 29 N. y. S. 619. 
 
 IT In re Attorney-General, 3 N. M. 
 304, 9 Pac. 249. See also supra, 
 § 230. 
 
 18 California. — People v. Stratton, 
 25 Cal. 242; People V. Pacheco, 29 
 Cal. 210; People v. Gold Run Ditch 
 & Min. Co., 66 Cal. 138, 4 Pac. 1152, 
 66 Am. Rep. 80; People v. Sutter St. 
 
 R. Co., 117 Cal. 604, 49 Pac. 736; 
 People V. Oakland Water Front Co.,. 
 118 Cal. 234, 50 Pac. 305; California 
 & Northern R. Co. v. State, 1 Cal.. 
 App. 142, 81 Pac. 971. 
 
 Florida. — State v. Gleason, 12 Fla. 
 190; State v. Bryan, 50 Fla. 293, 39< 
 So. 929. 
 
 Illinois. — ^Atty.-Gen. v. Newberry 
 Library, 150 111. 229, 37 N. E. 236, 
 affirming 51 111. App. 166; People v.- 
 General Electric R. Co., 172 111. 129,. 
 50 N. E. 158; Revell v. People, 177 111.- 
 468, 52 N. E. 1052, 69 Am. St. Rep.. 
 257, 43 L.R.A. 790. 
 
 Indiana. — Carr v. State, 81 Ind.. 
 342. 
 
 Kansas. — Wyandotte & K. C. Bridge- 
 Co. V. Wyandotte County Com'rs, 10- 
 Kan. 326. 
 
 Louisiana. — State v. Debenture 
 Guarantee & Loan Co., 51 La. Ann- 
 1874, 26 So. 600. 
 
1152 
 
 ATTOENEY-GENEEAL, 
 
 [§ T40 
 
 from the nature of his office,^' and will be presumed to exist, in 
 the absence of evidence to the contrary.*" Thus, it has been stated 
 that where a public right is invaded, and the authorities whose 
 ■duty it is to bring an action fraudulently refuse to do so, or no 
 other remedy exists, the attorney-general may sue in his repre- 
 sentative capacity, whether the injury affects the whole people. 
 
 Maine. — Hamlin v. Higgins, 102 
 Me. 510, 67 Atl. 625. 
 
 Massachusetts. — Atty.-Gen. v. Sa- 
 lem, 103 Mass. 138; Atty.-Gen. v. 
 Tudor Ice Co., 104 Mass. 239, 6 Am. 
 Eep. 227; Atty.-Gen. v. Tarr, 148 
 Mass. 309, 19 N. E. 358, 2 L.R.A. 87; 
 Atty.-Gen. v. Old Colony K. Co., 160 
 Mass. 62, 35 N. E. 252, 22 L.R.A. 112, 
 36 Am. & Eng. R. Cas. 59 ; Atty.-Gen. 
 V. Clark, 167 Mass. 201, 45 N. B. 183 ; 
 Atty.-Gen. v. Drohan, 169 Mass. 534, 
 48 N. E. 279, 61 Am. St. Rep. 301; 
 Atty.-Gen. v. Williams, 174 Mass. 
 476, 55 N. E. 77, 47 L.R.A. 314; Atty.- 
 Gen. V. Pitcher, 183 Mass. 513, 67 N. 
 E. 606. 
 
 Michigan. — ^Atty.-Gen. v. Detroit, 
 26 Mich. 263; Atty.-Gen. v. Evart 
 Booming Co., 34 Mieh. 462; Atty.- 
 Gen. V. Police Justice, 41 Mich. 224, 
 2 N. W. 25; Atty.-Gen. v. Detroit, 71 
 Mich. 98, 38 N. W. 714; McMullen v. 
 Person, 102 Mieh. 608, 61 N. W. 260; 
 Atty.-Gen. v. Booth, 143 Mich. 89, 
 106 N. W. 868. 
 
 Minnesota. — State v. Morlarty, 82 
 Minn. 68, 84 N. W. 495. 
 
 New Jersey. — State v. Seymour, 69 
 N. J. L. 606, 55 Atl. 91. 
 
 New York. — People v. New York, 
 32 Barb. 35, 19 How. Pr. 155 ; People 
 V. Macy, 62 How. Pr. 65; People v. 
 Tweed, 13 Abb. Pr. N. S. 25 ; People v. 
 Booth, 32 N. Y. 397 ; People v. Inger- 
 soll, 58 N. Y. 1, 17 Am. Rep. 178, af- 
 firming 67 Barb. 472; People v. Equi- 
 ty Gas Light Co., 141 N. Y. 232, 36 
 
 N. E. 194; People v. Manhattan Real 
 Estate & Loan Co., 175 N. Y. 133, 67 
 N. E. 219; People V. McClellan, 119 
 App. Div. 416, 104 N. Y. S. 447. 
 
 North Cwrolina. — ^Atty.-Gen. v. Hol- 
 ly Shelter R. Co., 134 N. C. 481, 46 
 S. E. 959. 
 
 Pennsylvwnia. — Cheetham ». Mc- 
 Cormick, 178 Pa. St. 186, 35 Atl. 
 631; Com. v. State Treasurer, 29 Pa. 
 Co. Ct. 545, 13 Pa. Dist. Ct. 232. 
 
 Rhode Island. — Greenough v. Lucey, 
 28 R. I. 230, 66 Atl. 300. 
 
 South Carolina. — State v. Corbin, 
 16 S. C. 533. 
 
 Tennessee. — State v. Red River 
 Turnpike Co., 112 Tenn. 615, 79 S. W. 
 798. 
 
 Texas. — State v. Farmers' L. & T. 
 Co., 81 Tex. 530, 17 S. W. 60; Moore 
 V. Bell, 95 Tex. 151, 66 S. W. 45. 
 
 Washington. — State v. Seattle Gas 
 & Electric Co., 28 Wash. 488, 68 Pac. 
 946, 70 Pac. 114. 
 
 Wisconsin. — Atty.-Gen. v, Chicago 
 & N. W. R. Co., 35 Wis. 425; Atty.- 
 Gen. V. Albion Academy & Normal 
 Inst., 52 Wis. 469, 9 N. W. 391 ; State 
 V. Leischer, 117 Wis. 475, 94 N. W. 
 299; State v. Milwaukee Electric R. 
 & Light Co., 136 Wis. 179, 116 N. W. 
 900, 18 L.R.A.(N.S.) 672. 
 
 19 State V. State Bank, 5 Mart.' N. 
 S. (La.) 327. 
 
 20 Nance v. People, 25 Colo. 252, 54 
 Pac. 631. See also Pennsylvania v. 
 Wheeling & B. Bridge Co., 13 How. 
 518, 14 U. S. (L. ed.) 249. 
 
■§ 741] ATTOENEY-GENEEAL. 1153 
 
 ■or a limited organization of them, or whether it be a public 
 nuisance, or a corrupt perversion of public money, property or 
 -credit.'' But the attorney-general cannot maintain a suit to pre- 
 vent or redress private wrongs.^ 
 
 § 741. Rights Which May Be Protected Generally. — 
 
 The state attorney-general has authority to prosecute any action 
 which can be maintained by the state.* Thus, he may proceed 
 to annul a patent for lands granted by the state,* or to recover 
 state property,* or property which has escheated to the state,* 
 ■or money due the state,' or penalties,' or school funds,' or money 
 due on a forfeited recognizance.^" So, where public rights are 
 involved, the attorney-general may file an information in quo 
 warranto proceedings,*' or institute proceedings for the protec- 
 tion of easement rights,'^ or to prevent the usurpation or destruc- 
 tion of a public franchise.'* He may also institute injunction 
 proceedings to restrain conspirators from violating the law,'* 
 as, for instance, from making contracts which have a tendency 
 to create a monopoly.'* It has also been held that the attorney- 
 general may institute proceedings for the disbarment of attorneys 
 at law.'^ But a proceeding to obtain a statutory liquor license 
 is not a suit by or against the state.''' 
 
 1 People V. Tweed, 13 Abb. Pr. N. S. " Wheeler v. Com., 98 Ky. 59, 32 S. 
 <N. Y.) 25. W. 259; State v. St. Louis, I. M. & S. 
 
 2 Atty.-G«n. v. Salem, 103 Mass. K. Co., 176 Mo. 718, 75 S. W. 888. 
 138. 12 Atty.-Gen. v. Williams, 174 Mass. 
 
 3 State V. Zachritz, 166 Mo. 307, 476, 75 N. E. 77, 47 L.E.A. 314. 
 
 65 S. W. 999, 89 Am. St. Eep. 711. l* Atty.-Gen. v. Detroit, 71 Mich. 
 
 4 State V. Thompson, 64 Tex. 690. 92, 38 N. W. 714. 
 
 5 State V. Carondelet Canal & Navi- l* State v. Fagan, 22 La. Ann. 545. 
 gation Co., 129 La. 279, 56 So. 137. " In re Davies, 168 N. Y. 89, 61 N. 
 
 6 Fuhrer v. State, 55 Ind. 150. E. 118, 56 L.R.A. 855, reversing 55 
 
 7 Succession of D'Aquin, 9 La. Ann. App. Div. 245, 67 N. Y. S. 492. 
 
 400. 16 Wilson v. Popham, 91 Ky. 327, 
 
 8 Com. v. Connecticut River R. Co., 15 S. W. 859; State v. Mullins, 129 
 15 Gray (Mass.) 447. Compare In re Mo. 231, 31 S. W. 744; State v. Har- 
 Atty.-Gen., Mart. & Y. (Tenn.) 285. ber, 129 Mo. 271, 31 S. W. 889. 
 
 9 State v. Meyer, 63 Ind. 33. " State v. Gorman, 171 Ind. 58, 85 
 
 10 State r. Schloss, 92 Ind. 293. N. E. 763. 
 Compare State v. Desforges, 5 Rob. 
 
 <La.) 253. 
 
 Attys. at L. Vol. II.— 73, 
 
1154 ATTOENEY-GENEEAL. [§§ 742, 74& 
 
 § 742. Enforcement of Public Trusts and Charities. — 
 The attorney-general is the proper officer to enforce public trusts 
 or charities,*' and he may file an information either of his own 
 motion or upon the relation of any party concerned for this pur- 
 pose." The power to institute proceedings of this character ex- 
 isted at common law and is incident to the office.^" It has been 
 held that the attorney-general should be made a party to an action 
 to enforce a trust left to the selectmen of the town for the support, 
 of the gospel therein,* and to an action to test the validity of a 
 bequest for charitable purposes,^ and to an action involving the 
 proper administration of a trust in which the public are inter- 
 ested.' And where the beneficiaries are so numerous and indefi- 
 nite that a breach of the trust cannot be effectively redressed, ex- 
 cept by an action in behalf of the people, a court of equity will 
 sustain an information at the suggestion of the attorney-general 
 in behalf of the people.* But a bequest of a certain sum for the 
 establishment of a school in a specified locality "for the education 
 of children, to be expended according to the direction of my said 
 executors," is not a bequest for a public charity which may be 
 enforced by the attorney -general.' 
 
 § 743. Abatement of Public Nuisances. — The attorney-gen- 
 eral may proceed for the abatement of a public nuisance, and the 
 fact that such nuisance may also work a private injury is im- 
 material.® Thus, he may maintain an action to compel the re- 
 
 18 Parker v. May, 5 Gush. (Mass.) v. West Congregational Soc, 55 N. H. 
 336; Jackson v. Phillips, 34 Allen 463. 
 
 (Mass.) 539; Atty.-Gen. v. Garrison, ^ Jaclcson v. Phillips, 14 Allen 
 
 101 Mass. 223; Atty.-Gen. v. Tudor (Mass.) 539. 
 
 Ice Co., 104 Mass. 239, 6 Am. Rep. S Newberry v. Blatchford, 106 111. 
 
 227; In re Creighton's Estate, 91 584; Atty.-Gen. v. Newberry Library, 
 
 Neb. 654, Ann. Cas. 1913D 128, 136 150 111. 229, 37 N. E. 236, affirming 51 
 
 N. W. 1001; New York Female Ass'n 111. App. 166. 
 
 V. Beektnan, 21 Barb. (N. Y.) 565. * Atty.-Gen. v. Garrison, 101 Mass.. 
 
 19 Trustees of Princeton University 223. 
 
 V. Wilson, 78 N. J. Eq. 1, 78 Atl. 393. 6 Atty.-Gen. v. Soule, 28 Mich. 153. 
 
 80 Parker v. May, 5 Cush. (Mass.) 6 Atty.-Gen. v. Boston Wharf Co., 
 
 336. 12 Gray (Mass.) 553; District At- 
 
 1 Orford Union Congregational Soc. torney v. Lynn & B. E. Co., 16 Gray 
 
§§ 744, 745] ATTOENEY-GENEEAL. 1155 
 
 moval of a wooden shed from a wharf which is used as a high- 
 way/ or to abate or restrain the erection of a purpresture/ or to 
 protect easement rights,® or to prevent the erection of a build- 
 ing contrary to an agreement with the state,*" or to restrain the 
 building or maintenance of projections which will obstruct a 
 passageway.** 
 
 § 744. Collection and Assessment of Taxes. — It would 
 seem that the attorney-general may take such proceedings as are 
 necessary for the collection and enforcement of state taxes, espe- 
 cially where that duty has not been delegated to any other public 
 officer.*^ In Texas it is provided by statute that the attorney- 
 general, upon the request of the comptroller, must sue in the 
 name of the state for taxes imposed on railroad corporations, 
 express companies, etc.*' But authority to attend all cases in 
 which the state is interested, and to investigate the conditions of 
 \msatisfied claims due the state, and take all necessary steps to 
 collect the same, does not warrant the attorney-general in prose- 
 cuting a suit to compel the listing of property for taxation 
 purposes.** 
 
 § 745. Suits by or against State Officers. — In many Juris- 
 dictions the state attorney-general is expressly designated as the 
 attorney for state officers generally, and it would seem that he 
 should represent them, even in the absence of statutory regulation, 
 in actions brought by or against them in an official capacity,** 
 
 (Mass.) 242; Atty.-Gen. v. Cam- 10 Atty .-Gen. «. Gardiner, 117 Mass. 
 
 bridge, 16 Gray (Mass.) 247; State 492. 
 
 V. Vandalia, 119 Mo. App. 406, 94 S. " Atty.-Gen. v. Williams, 140 Mass. 
 
 W. 1009 ; Com. v. State Treasurer, 29 329, 2 N. E. 80, 3 N. E. 214, 54 Am. 
 
 Pa. Co. Ct. 545, 13 Pa. Dist. Ct. 232. Rep. 468. 
 
 See also Atty.-Gen. f. Albion Acad- instate v. Central Pac. R. Co., 10 
 
 emy, 52 Wis. 469, 9 N. W. 391. Nev. 47. 
 
 t People V. Macy, 62 How. Pr. ( N. " Brady v. Brooks, 99 Tex. 366, 8!> 
 
 Y.) 65. S. W. 1052. 
 
 8 People V. Vanderbilt, 26 K. Y. 287, l* Com. v. Southern Pac. Co., 127 
 affirming 38 Barb. 282, 24 How. Pr. Ky. 358, 105 S. W. 466, 32 Ky. L. Rep. 
 301. 259, 285. 
 
 9 Atty.-Gen. v. Williams, 1 74 Mass. i* People v. State University, 24- 
 476, 55 N. E. 77, 47 LR.A. 314. Colo. 175, 49 Pac. 286; Nance v. Peo- 
 
1156 ATTOEITEY-GENEEAI,. [§ 746 
 
 unless, unda-r tlie laws of tlie state, they are entitled to employ 
 counsel themselves.^® Thus, the attorney-general may represent 
 state officers in mandamus proceedings." So, he may bring suit 
 for the recovery of money or property owing to the state by any 
 of its officers," or on the state treasurer's bond; " and, in some 
 jurisdictions, he may also sue to restrain state officers from act- 
 ing under an unconstitutional statute.^" 
 
 § 746. Suits by or against Municipal or Quasi-Municipal 
 Corporations, etc. — Ordinarily the state attorney-general will 
 not interfere in the management of municipal or quasi-municipal 
 corporations, and this is especially true as to matters which are 
 merely technical or unimportant.^ Thus, it has been held that 
 the attorney-general cannot enjoin the issuance of town bonds,* 
 or maintain a suit to restrain the unauthorized tearing up of 
 street pavements, where the municipal authorities have ample 
 power to protect themselves thereagainst ; ' nor can the attorney- 
 general restrain one from taking possession of property owned 
 by a municipality.* So, it has been held that the attorney-general 
 cannot restrain a county treasurer from collecting taxes for the 
 payment of bonds issued by a school district,* or maintain an 
 
 pie, 25 Colo. 252, 54 Pac. 631 ; Orton 92 Ind. 293 ; Tippecanoe County v. 
 
 r. State, 12 Wis. 509. State, 92 Ind. 353; State v. McClel- 
 
 iBThe New York forest, fish, and land, 138 Ind. 395, 37 N. E. 799; 
 
 ^ame commission may employ special Crawford v. State, 155 Ind. 692, 57 N. 
 
 counsel to represent them in certain E. 931. 
 
 proceedings, and the attorney-general 19 Miller v. State, 69 Miss. 112, 12 
 
 has no right to he substituted in the So. 265; State v. Welbes, 11 S. D. 86, 
 
 place of the counsel so selected. Peo- 75 N. W. 820. 
 
 pie V. Santa Clara Lumber Co., 126 20 State v. Cunningham, 81 Wis. 
 
 App. Div. 616, 110 N. Y. S. 280, 60 440, 51 N. W. 724, 15 L.R.A. 561. 
 
 Misc. 150, 113 N. Y. S. 70. 1 Atty.-Gen. v. Detroit, 26 Mich. 
 
 it Nance v. People, 25 Colo. 252, 54 263 ; Atty.-Gen. v. Detroit, 55 Mich. 
 
 Pac. 631; Jennings v. State Veteri- 181, 20 N. W. 894. 
 
 nary Board, 156 Mich. 417, 120 N. W. 2 People v. Miner, 2 Lans. (N. Y.) 
 
 785, 16 Detroit Leg. N. 101; State v. 396. 
 
 Osakis, 112 Minn. 365, 128 N. W. 295. 8 People v. Equity Gas Light Co., 
 
 "Moore v. State, 55 Ind. 360; 141 N. Y. 232, 36 N. E. 194. 
 
 State V. Denny, 67 Ind. 148; Carr v. 4 People v. Booth, 32 N. Y. 397. 
 
 State, 81 Ind. 342; State v. Marion 6 State «. McLaughlin, 15 Kan. 228, 
 
 County, 85 Ind. 489 ; State v. SchlOsa, 22 Am. Eep. 264. 
 
§ 747] ATTOENEY-GENEEAL. 1157 
 
 action, in behalf of the people, to recover money fraudulently 
 drawn from a county treasury.* In some jurisdictions, however, 
 the attorney-general is vested with certain authority over affairs 
 of this character; thus, he may represent a county on appeal, 
 unless its interests are adverse to those of the state or some ofScer 
 thereof.'' So, it has been held that the attorney-general may re- 
 strain county officers from issuing certain bonds,* or from exer- 
 cising inhibited powers.* And in some jurisdictions the attorney- 
 general may proceed for the removal of certain municipal officers 
 under statutory authority.'" 
 
 § 747. Suits by or against Private Corporations. — The 
 
 state attorney-general is frequently authorized to inquire into the 
 affairs of private corporations.*' Thus, he may proceed to pre- 
 vent such corporations from exercising, or assuming to exercise, a 
 franchise not conferred by law, and which is detrimental to the 
 public interests ; '* and it has been said that such authority exists 
 from the nature of his office, even in the absence of statutory 
 regulation ; *' for instance, he may appear on behalf of the state, 
 and participate in the argument of a case involving the right of 
 a corporation to practice law.'* In some jurisdictions the attor- 
 ney-general may maintain an action for the dissolution of cor- 
 porations,'^ notwithstanding the pendency of proceedings for its 
 voluntary dissolution.'* But he is not bound to proceed by quo 
 
 6 People V. IngersoU, 58 N. Y. ], 17 13 See dissenting opinion of Whit- 
 
 Am. Rep. 178, affirming 67 Barb. 472. field, C. J., in Henry v. State, 87 Miss. 
 
 I Corker v. Elmore County, 11 98, 39 So. 856. 
 
 Idaho 787, 84 Pac. 509. i* Matter of Co-operative Law Co., 
 
 SMcMullen v. Ingham Circuit 198 N. Y. 479, 19 Ann. Cas. 879, 92 
 
 Judge, 102 Mich. 608, 61 N. W. 260. N. E. 15, 139 Am. St. Rep. 839, 32 
 
 STaggart v. Board of Auditors of L.R.A. (N.S.) 55. 
 
 Wayne County, 73 Mich. 53, 40 N. W. 15 People v. Manhattan Real Estate 
 
 852. & Loan Co., 175 N. Y. 133, 67 N. E. 
 
 10 State V. Robinson, 101 Minn. 277, 219, reversing 74 App. Div. 535, 77 N. 
 
 112 N. W. 269. Y. S. 837. Compare State v. Milwau- 
 
 II State V. Southern R. Co., 82 S. C. kee Electric R. & Light Co., 136 Wis. 
 12, 62 S. E. 1116. 179, 116 N. W. 900, 18 L.R.A.(N.S.) 
 
 i2Atty.-Gen. v. Moliter, 26 Mich. 672. 
 
 444 ; State v. International & G. N. R. 16 Peop! j v. Murray Hill Bank, 10 
 
 Co., 89 Tex. 562, 35 S. W. 1067. See App. Div. 328, 41 N. Y. S. 804. 
 also State v. Paris R. Co., 55 Tex. 76. 
 
1158 ATTOENET-GENEEAL. [§ 748 
 
 warranto for the forfeiture of the charter of a corporation which 
 has exceeded its power; he may proceed, instead, to enjoin it from 
 so acting." It is also provided, in some states, that the corpora- 
 tion commission, whenever in its judgment any corporation has 
 violated a law, shall first give notice of such violation to the 
 offending corporation, and, in the event of a failure of the cor- 
 poration to comply with the law, shall forthwith present the facts 
 to the attorney-general, who shall take such proceedings thereon 
 as he may deem expedient; and such provisions are held to be 
 mandatory.^' So, also, under some statutes, the attorney-general 
 is required to institute proceedings to prohibit the issuance of 
 corporate stock for less than its par value.^® The state attorney- 
 general is also charged with the enforcement of the railroad rate 
 laws in many instances ; *" but it seems that he has no power to 
 intervene in cases of this character without statutory authority.* 
 
 § 748. Necessity of Request to Act for State. — As a gen- 
 eral rule, the attorney-general, as the chief law officer of the state, 
 may act on his ovra. judgment and discretion, in behalf of the 
 state, either in instituting, appearing in, or defending litigation 
 wherein the state is interested.* But in some jurisdictions, for 
 certain purposes at least, the attorney-general can only act on 
 behalf of the state on the request of the governor or legislature 
 thereof,* or with the consent of the court.* Where such request 
 
 1' Chicago Fair Grounds Assoc, v. Co., 22 Neb. 313, 35 N. W. 118; State 
 
 People, 60 111. App. 488; Atty.-Gen. v. v. Pacific Exp. Co., 80 Neb. 823, 115 
 
 Chicago & N. W. R. Co., 35 Wis. 425. N. W. 619, 18 L.R.A.(N.S.) 664; 
 
 18 Southern E. Co. v. McNeill, 155 Moore v. Bell, 95 Tex. 151, 66 S. W. 
 Fed. 756 (decided under the laws of 45. 
 
 Nortli Carolina). See also Ex p. l Railroad Tax Cases, 136 Fed. 233. 
 
 Young, 209 U. S. 123, 14 Ann. Gas. 2 Atty.-Gen. v. Holly Shelter E. Co., 
 
 764, 28 S. Ct. 441, 52 U. S. (L. cd.) 134 N. C. 481, 46 S. E. 959. See also 
 
 714, 13 L.R.A. (N.S.) 932. the preceding section of this subdi- 
 
 19 Cheetham v. McCormick, 178 Pa. vision. 
 
 St. 186, 35 Atl. 631 . 8 Atchison, T. & S. F. R. Co. v. Peo- 
 
 26 Ex p. Young, 209 U. S. 123, 14 pie, 5 Colo. 60; In re Creighton's Es- 
 
 Ann. Cas. 764, 28 S. Ct. 441, 52 U. S. tate, 91 Neb. 654, Ann. Cas. 1913D 
 
 (L. ed.) 714, 13 L.R.A.(N.S.) 932; 128, 136 N. W. 1001 ; State «;. Huston, 
 
 Southern R. Co. v. McNeill, 155 Fed. 21 Okla. 782, 97 Pac. 982. 
 
 756; State v. Fremont, E. & M. V. E. * People v. Bleecker St. & F. F. R. 
 
§ 749] ATTOENEY-GENEEAL. 1159 
 
 or consent is necessary, voluntary action on the part of the attor- 
 ney-general will not bind the state,^ excepting, possibly, where his 
 acts are subsequently ratified." On the other hand, where the 
 "attorney -general has been requested to act by the proper authori- 
 ties, it would seem that he has no discretion in the matter.'' 
 
 § 749. Pleadings. — The attorney-general, when acting in be- 
 half of the state, is bound by his pleadings, for practical purposes 
 at least, as any other lawyer would be.' In prosecuting an action 
 it is essential that the bill, petition or complaint should set forth 
 a good cause,* based on a public grievance.'" And when the action 
 is one that can only be commenced on the request, or with the' 
 consent, of others,^' such request or consent must be alleged and 
 proved.'^ The attorney-general may bring an action on his own 
 information,'^ and, consequently, an allegation to the effect that 
 such action is brought on the information of another may be re- 
 jected as surplusage,'* excepting, possibly, where the action is 
 brought for the purpose of benefiting such other person.'* And 
 where the attorney-general fails to maintain an information, he 
 cannot then contend that the relator is an orator, and the in- 
 formation a bill, and ask that the relief prayed for be granted 
 the orator.'" An information by the attorney-general ex officio 
 is equivalent to a bill in chancery verified on information and 
 belief, and in proper cases calls for a verified answer ; ''' but a tem- 
 porary injunction will not usually issue upon such an informa- 
 
 Co., 140 App. Div. 611, 125 N. Y. S. 12 People v. Bleecker St. & F. F. R. 
 
 1045, o;?irmtn(7 judgment 67 Misc. 577, Co., 140 App. Div. 611, 125 N. Y. S. 
 
 124 N. Y. S. 782. 1045, affirmed 201 N. Y. 594, 95 N. E. 
 
 BNew Orleans & C. R. Co. v. New 1136. 
 
 Orleans, 34 La. Ann. 429 ; Ex p. Dunn, 13 People r. Loew, 26 Civ. Proc. 132, 
 
 « S. C. 207. 19 Misc. 248, 44 N. Y. S. 42. 
 
 6 See supra, §§ 211-214. 14 People v. Loew, 19 Misc. 248, 26 
 
 7 Emery v. State, 101 Wis. 646, 78 Civ. Proc. 132, 44 N. Y. S. 4,2. 
 
 N. W. 145. 15 People v. Metropolitan Bank, 7 
 
 8 Martin v. Com., 1 Mass. 347. How. Pr. (ST. Y.) 144. 
 
 ■ 9 state r. Lancaster County Bank, 8 l^ Atty.-Gen. r. Evart Booming Co., 
 
 Neb. 218. 34 Mich. 462. 
 
 10 Atty.-Gen. v. Evart Booming Co., 17 Atty.-Gen. v. Chicago & N. W. R. 
 34 Mich. 462. Co., 35 Wis. 425. 
 
 11 See the preceding section. 
 
1160 ATT0E]5rEY-GENEEAL. [§§ 750, 751 
 
 tion, unsupported loj affidavit, until the defendant has had an 
 opportunity to contradict it on oath and has failed to do so.^* 
 
 § 750. Costs and Expenses. — As a general rule, the attor- 
 ney-general is not liable for costs in a suit brought in his official 
 capacity on behalf of the state,'* and should such costs be taxed 
 against him, the state will be liable therefor.*" It would seem 
 also that the attorney-general might incur such expense as is 
 reasonably necessary for the purpose of carrying on litigation in 
 which he is engaged on behalf of the state ; ' but it has been held 
 that he may not engage an expert witness.* 
 
 Control of Litigation. 
 
 § 751. State Litigation under Control of Attorney-Gen- 
 eral. — Where it becomes the duty of the attorney-general tO' 
 represent the state in litigation, he has entire control of the pro- 
 ceeding; and neither the governor nor any other officer of the 
 state can interfere with such control,* in the absence of statutory 
 authority.* Thus, it has been held that the attorney-general may 
 appeal from a judgment taken by consent of the district at- 
 torney,* or where the district attorney declines to act.* So, the 
 attorney-general may waive his right to an appeal, by stipulation 
 with counsel for the adverse party, should he consider it ad- 
 visable to do so.'' And, as a rule, the attorney-general has power, 
 both under the common law and by statute, to make any disposi- 
 
 18 Atty.-Gen. v. Chicago & N. W. E. Co., 22 Neb. 313, 35 N. W. 118; State- 
 Co., 35 Wis. 425. V. California Min. Co., 13 Nev. 203; 
 
 19 Atty.-Gen. v. Illinois Agrieul- State v. Southern R. Co., 82 S. C. 12, 
 tural College, 85 111. 516; State v. 62 S. E. 1116. 
 
 Marion County, 85 Ind. 489. * State v. Ehrlick, 65 W. Va. 700, 
 
 20 State V. Marion County, 85 Ind. 64 S. E. 935, 23 L.R.A.(N.S.) 691. 
 489 ; Henderson v. State, 96 Ind. 437. 5 Sacramento County v. Central 
 
 1 See supra, § 252. Pac. R. Co., 61 Cal. 250. 
 
 2 Ritchie v. State, 42 Wash. 653, 85 estate v. Sheriff, 45 La. Ann. 162,. 
 Pac. 417. 12 So. 189. 
 
 3 Fletcher's Succession, 12 La. Ann. 7 See also State v. Eeheveria, 33 La^ 
 498; State v. Dubuclet, 27 La. Ann. Ann. 709; People v. Stephens, 52 N. 
 29; Henry v. State, 87 Miss. 1, 39 So. Y. 306. 
 
 856; State v. Fremont, E. & M. V. R. 
 
§ 752] 
 
 ATTOKNEY-GENEEAL. 
 
 1161 
 
 tion of the state's litigation that he deems for its best interest ; ' 
 for instance, he may abandon,^ discontinue,'" dismiss,^' or eom- 
 pro^iise it.'^ But he cannot enter into any agreement with re- 
 spect to the conduct of litigation which will bind his successor in 
 office,'* nor can he empower any other person to do so.'* 
 
 The authority of lawyers generally in the conduct of litigation 
 has been considered heretofore.'* 
 
 § 752. Dismissal of Suit. — The attorney-general may dis- 
 miss any suit or proceeding, prosecuted solely in the public in- 
 terest, regardless of the relator's wishes ; '* and it has been so held 
 with reference to an action brought in the name of the people for 
 the forfeiture of a corporation charter.''' But the situation is 
 different as to cases which also involve an adjudication of the 
 relator's rights, and it has been held that these cannot be dis- 
 missed by the attorney -general to the prejudice of the relator ; '* 
 and this is particularly true where the state has no direct interest 
 in the event of the suit.'® For instance, it has been held that the 
 
 8 Hunt V. Chicago Horse & D. E. 
 Co., 121 111. 638, 13 N. E. 176. 
 
 9 People V. Central Cross-Town R. 
 Co., 21 Hun (N. Y.) 476. 
 
 10 People V. Central Cross-Town E. 
 Co., 21 Hun (>f. Y.) 476. 
 
 11 See the following section. 
 
 12 See infra, § 753. 
 
 18 People V. Sutter St. E. Co., 117 
 Cal. 604, 49 Pac. 736; State v. Gra- 
 ham, 25 La. Ann. 433 ; People v. Mc- 
 Clellan, 118 App. Div. 177, 103 N. Y. 
 S. 146, affirmed 188 N. Y. 618, 81 N. 
 E. 1171. 
 
 1* People V. Mutual Union Tel. Co., 
 2 McCarty Civ. Proc. (N. Y.) 295. 
 
 15 See supra, §§ 246-275. 
 
 16 People V. Spring Lake Drainage 
 & Levee Dist., 253 111. 479, 97 N. E. 
 1042; People v. Central Gross-Town 
 R. Co., 21 Hun (N. Y.) 476; People 
 V. Tobacco Mfg. Co., 42 How. Pr. 
 (N. Y.) 162; State v. Southern E. 
 
 Co., 82 S. C. 12, 62 S. E. 1116; State 
 V. Eed Eiver Turnpike Co., 112 Tenn. 
 615, 79 S. W. 798. 
 
 "People V. Tobacco Mfg. Co., 42 
 How. Pr. (N. Y.) 162. 
 
 Compare Mechanics' Fire Ins. Co.'s 
 Case, 5 Abb. Pr. (N. Y.) 444, holding 
 that the attorney-general cannot, 
 without the consent of the comp- 
 troller, discontinue proceedings to dis- 
 solve an insurance company for al- 
 leged insufficiency of assets. 
 
 18 People V. North San Francisco 
 Homestead & E. Assoc, 38 Cal. 564; 
 People V. Clark, 72 Cal. 289, 13 Pae. 
 858; People v. Jacob, (Cal.) 12 Pac. 
 222 ; Atty.-Gen. v. Wallace, 7 B. Men. 
 (Ky.) 611; Atty.-Gen. v. Barstow, 4 
 Wis. 567. See also Duke v. State, 56 
 Ark. 485, 20 S. W. 600. 
 
 19 People V. North San Francisco 
 Homestead & E. Assoc, 38 Cal. 564; 
 People V. Jacob, (Cal.) 12 Pac. 222. 
 
1162 ATTOENEY-GENEEAL. [§§ 753, 754 
 
 attorney-general may not dismiss an information to enforce a 
 charitable bequest, where the control of the cause, and the lia- 
 bility for costs, rest upon another.^" And while an information 
 in the nature of quo warranto, which has been filed by the at- 
 torney-general upon the relation of one who claims an office, may 
 be dismissed so far as the public is concerned therein, the relator 
 may be allowed to prosecute the suit in his own behalf.* 
 
 § 753. Compromise. — It has been stated heretofore that 
 attorneys generally have no implied authority to compromise liti- 
 gation undertaken by them for their clients,^ and the rule is the 
 same with respect to litigation conducted by the attorney-general 
 for the state ; ' nor will the state be bound by such a settlement.* 
 Thus, it has been held that the state will not be bound by the 
 acquiescence of the attorney-general in an adverse judgment* 
 Of course, the attorney -general may be authorized to compromise 
 the state's litigation, and, in such case, the compromise will be 
 effective.* Where it is desired to compromise, and no express 
 authority to do so exists, the proper practice seems to be to con- 
 tinue the case, having the court's permission, of course, and to 
 submit the terms of settlement to the legislature.' 
 
 Criminal Prosecutions. 
 
 § 754. Authority to Conduct Criminal Trials. — As a rule, 
 the state attorney-general does not conduct the trial of criminal 
 cases,' as litigation of this character falls within the duties of 
 prosecuting attorneys,® over whom the attorney-general has cer- 
 
 «0 Atty.-Gpn. v. Wallace, 7 B. Mon. 4 Duke v. State, 56 Ark. 485, 20 S. 
 
 (Ky.) 611. W. 600. 
 
 1 Atty.-Gen. v. Barstow, 4 Wis. 5G7. 5 State v. Echeveria, 33 La. Ann. 
 
 2 See supra, § 215. And as to au- 709. 
 
 thority with respect to compromise 6 State v. Southwestern R. Co., 66 
 
 and release generally, see supra, Ga. 403. See also supra, §§ 225, 226. 
 
 §§ 215-228. 7 state v. Hackley, 119 La. 482, 44 
 
 s Duke V. State, 56 Ark. 485, 20 S. So. 272. 
 
 W. 600 ; State v. Southwestern R. « Sharp v. Kirkendall, 2 J. J. 
 
 Co., 66 Ga. 403; Com'rs of Public Ac- Marsh. (Ky.) 150. 
 
 counts V. Eose, 1 Desaus. (S. C.) 461. 9 See supra, §§ 706, 712. 
 
§ 754] ATTOENEY-GENEKAL. 1163 
 
 tain supervisory powers ; " and it has been recently said that his 
 powers in criminal cases are only those conferred on him by stat- 
 ute.^* In many jurisdictions, however, the authority of the 
 attorney-general to prosecute criminals is recognized either by 
 statute or as a common-law incident of his office ; ** and, where 
 this is true, he may appear in such trials without stating any 
 reason for so doing,^' or he may authorize another attorney to 
 assist therein.^* In some instances the attorney-general is re- 
 quired to appear in criminal cases only when requested to do so 
 by the governor ; ^^ thus, a New York statute requires him or his 
 deputy to represent the people, when so directed by the governor, 
 in the prosecution of crimes against the elective franchise, before 
 all magistrates, in all courts, and before any grand jury.*® And 
 a Kansas statute requires him to enforce the provisions of a 
 prohibitory liquor law in the event of the inability, neglect or 
 refusal of the county attorney to do so." In most states the 
 attorney-general is authorized to represent the state in all criminal 
 cases on appeal; but he may, and generally does, accept the serv- 
 ices of the prosecuting attorney for this purpose.*' 
 
 10 Sacramento County v. Central Temple v. State, (Tenn.) 155 S. W. 
 
 Pae. R. Co., 61 Cal. 250; State c. Dis- 388; Emery v. State, 101 Wis. 627, 
 
 ti-ict Ct., 22 Mont. 25, 55 Pac. 016. 78 N. W. 145. 
 
 nCosson V. Bradshaw, (la.) 141 16 People v. Kramer, 33 Misc. 209, 
 
 N. W. 1062. , 15 N. Y. Grim. 257, 68 N. Y. S. 383. 
 
 13 People V. Gibson, 53 Colo. 231, "In re Gilson, 34 Kan. 641, 9 Pae. 
 
 125 Pac. 531; People v. Kramer, 33 763; State i. Crilly, 69 Kan. 802, 77 
 
 Misc. 209, 15 N. Y. Grim. 257, 68 N. Pac. 701; State v. District Court, 19 
 
 Y. S. 383 ; State v. Heidt, 20 N. D. 357, N. D. 819, Ann. Gas. 1912D 935, 124 
 
 127 N. W. 72; State v. Becker, 3 S. N. W. 417. 
 
 D. 29, 51 N. W. 1018. 18 Stewart v. State, 24 Ind. 142; 
 
 13 State V. Hays, 23 Mo. 287 ; State State v. Jamison, 142 Ind. 679, 42 N. 
 V. White, 21 N. D. 444, 131 N. W. E. 350; State v. Sopher, 157 Ind. 360, 
 261. 61 N. E. 785; State v. Fleming, 13 la. 
 
 14 State V. Russell, 26 La. Ann. 68; 443; People r. Burt, 51 Mich. 199, 16 
 State V. Anderson, 29 La. Ann. 774; N. W. 378; People v. Swift, 59 Mich. 
 Com. f. Tuck, 20 Pick. (Mass.) 356. 529, 26 N. W. 694; People v. Bussey, 
 See stipra, §§ 695-704. 80 Mich. 501, 45 N". W. 594; State v. 
 
 15 State r. Dawson, 86 Kan. 180, Cornwell, 14 Wyo. 526, 85 Pac. 977. 
 119 Pac. 360, 39 L.R.A.(N.S.) 993; 
 
1164 
 
 ATTOENEY-GENEEAL. 
 
 [§ V55 
 
 § 755. Control of Trial. — Where the attorney-general is 
 empowered, either generally or specially, to conduct a criminal 
 prosecution, . he may do any act which the prosecuting attorney 
 might do in the premises ; that is, he can do each and every thing 
 essential to prosecute in accordance with the law of the land,*' 
 and this includes appearing in proceedings before the grand 
 jury.^" So, an attorney-general, even at common law, had the 
 right to enter a nolle prosequi,^ although he could not do so dur- 
 ing the trial without leave of court.* 
 
 19 People V. Gibson, 53 Colo. 231, 
 125 Pac. 531; State v. Bowles, 70 Kan. 
 821, 79 Pac. 726, 69 L.R.A. 176; State 
 V. District Court, 19 N. D. 819, Ann. 
 Cas. 1912D 935, 124 N. W. 417. 
 
 20 People V. Kramer, 33 Misc. 209, 
 15 N. Y. Grim. 257, 68 N. Y. S. 
 383; State v. District Court, 19 N. 
 D. 819, Ann. Cas. 1912D 935, 124 N. 
 W. 417. See also State v. Robinson, 
 101 Minn. 277, 289, 112 N. W. 269, 
 272, 20 L.E.A.(N.S.) 1127; State v. 
 District Court, 22 Mont. 25, 55 Pac. 
 916. 
 
 iCom. V. Tuck, 20 Pick. (Mass.) 
 356; People v. McLeod, 1 Hill (N. 
 Y.) 377, 37 Am. Dec. 328; Rogers v. 
 Hill, 22 R. I. 496, 48 Atl. 670. 
 
 «Com. V. Tuck, 20 Pick. (Mass.) 
 356; State v. I. S. S., 1 Tyler (Vt.) 
 178. 
 
 In New York the entry of a nolle 
 prosequi is abolished by statute, and 
 neither the attorney-general nor the 
 district attorney can discontinue or 
 abandon a prosecution for crime with- 
 out an order of court. Code Crim. 
 Pro. N. Y., §§ 671, 672. 
 
CHAPTEE XXIX. 
 
 SUSPENSION AND DISBARMENT GENEEALLY. 
 
 Power to Suspend or Disbar, 
 
 756. Eevocability of License. 
 
 757. Power to Suspend or Disbar Generally. 
 
 758. Inherent Power. 
 
 759. As Affected by Statute. 
 
 760. Basis of Power. 
 
 761. Nature of Power. 
 
 Purpose and Ejfect of Suspension and Disbarment. 
 
 762. Purpose. 
 
 763. Effect. 
 
 Jurisdiction. 
 
 764. In General. 
 
 765. Courts Having Power to Admit Attorneys. 
 
 766. Court before Which Attorney Practices. 
 
 767. Appellate Courts. 
 
 768. Inferior Courts. 
 
 769. Disbarment from Practicing in Certain Governmental Departments. 
 
 770. Jurisdiction to Disbar for Offenses Committed in Another Court. 
 
 771. As to Offenses Committed in Another Jurisdiction. 
 
 772. In England and Canada. 
 
 Power to Suspend or Disbar. 
 
 § 756. Revocability of License. — An attorney at law is an 
 officer of court, exercising a privilege or franchise to the enjoy- 
 ment of which he has been admitted, not as a matter of right, but 
 upon proof of fitness through evidence of his possession of satisfac- 
 tory legal attainments and a fair character ; * and it is essential 
 that these qualifications should be maintained during his continu- 
 
 1 In re Durant, 80 Conn. 140, 10 Ann. Cas. 539, 67 Atl. 497. And see 
 supra, § 21 et seq. 
 
 1165 
 
1166 SUSPENSION AND DISBAEMENT GENERALLY. [§ 757 
 
 ance in office.* The right to practice law is not an absolute one, 
 nor has it ever been considered other than a license/ the holder of 
 which is accountable to the court for the manner in which he exer- 
 cises the privileges conferred upon him.* It is, of course, a valu- 
 able right,' not a mere indulgence revocable at the pleasure of the 
 court or by an enactment of the legislature,® and can only be taken 
 away by the judgment of a court of competent jurisdiction after a 
 judicial hearing on charges legally presented, in which the attor- 
 ney is given a full and fair opportunity to be heard.'' 
 
 § 757. Power to Suspend or Disbar Generally. — From 
 what has been stated in the preceding section, it is evident that an 
 attorney's license may be revoked either by his suspension or dis- 
 barment," whenever it is satisfactorily established that he is an un- 
 fit or unsafe person to enjoy the privileges of an attorney at law, 
 or to manage the business of others in that capacity.' Some ques- 
 tions have arisen, however, as to whether the power to disbar is in- 
 herent in the court, or whether it may be controlled entirely by leg- 
 islation, and these will be considered later.'" The fact that a mem- 
 ber of the bar has relinquished his practice as such, and gone into 
 another business, will not preclude the right of the court to disbar 
 him ; '^ nor will an attorney be permitted to defeat disbarment 
 
 2 In re Thatcher, 190 Fed. 969. Elhinney, 241 Mo. 592, 145 S. W. 
 
 SWernimont v. State, 101 Ark. 1139. And see m/ro, § 865 et seq., as 
 
 210, Ann. Gas. 1913D 1156, 142 S. W. to procedure generally. 
 194 ; In re Baum, 55 Hun 611 mem., 8 Cormecticut. — In re Durant, 80 
 
 8 N. Y. S. 771. And see supra, § 21. Conn. 140, 10 Ann. Gas. 539, 67 Atl. 
 
 4 Ex p. Brounsall, 2 Cowp. (Eng.) 497. 
 
 829; Ex p. Garland, 4 Wall. 333, 18 New York.— In re Flannery, 150 
 
 U. S. (L. ed.) 368; Ex p. Robinson, App. Div. 369, 135 N. Y. S. 612. 
 
 19 Wall. 505, 22 U. S. (L. ed.) 205; North Carolina.— ^x p. Biggs, 64 
 
 Ex p. Wall, 107 U. S. 265, 2 S. Ct. N. C. 202. 
 
 569, 27 U. S. (L. ed.) 552; In re South Carolina. — State v. Holding, 
 
 Durant, 80 Conn. 140, 10 Ann. Gas. 1 McGord L. 379. 
 
 539, 67 Atl. 497. Utah.— In re Evans, 130 Pac. 217. 
 
 5 In re Thatcher, 190 Fed. 969. » As to grounds for disbarment, see 
 
 6 Ex p. Garland, 4 Wall. 333, 18 infra, §§ 773-852. 
 
 U. S. (L. ed.) 366. 10 See the two following sections. 
 
 7 Ex p. Garland, 4 Wall. 333, 18 "In re Dellenbaugh, 9 Ohio Cir. 
 U. S. (L. ed.) 366; In re Thatcher, Dec. 325, 17 Ohio Cir. Ct. 100. 
 
 190 Fed. 969; Shackelford v. Mc- 
 
§ 768] SUSPENSION AND DISBARMENT GENERALLY. 1167 
 
 proceedings by his voluntary resignation prior to the entry of 
 judgment.^'' So, it has been held that the judge of a court of rec- 
 ord may be disbarred as an attorney.^' 'Nor will the power to dis- 
 bar an attorney be affected either by the wealth or poverty of the 
 attorney or his client, or the importance or unimportance of the in- 
 terests at stake in a particular case. To quote a distinguished 
 jurist: "The respondent in this case was in the employ of clients 
 who were supposed to have great wealth and who were at the head 
 of important corporations. The impression that they are immune 
 from civil or criminal prosecution for their acts seems to have per- 
 vaded the community of late years, and with it has grown up a sen- 
 timent among many members of the profession that, in carrying 
 out their behest, a lawyer is performing his duty to the profes- 
 sion, to the public, and to the courts. It is the importance, or as- 
 sumed importance, of the client, which is sought to justify acts 
 which would be at once condemned in connection with a client who 
 did not have great wealth or great prominence. If the profession 
 is to have the respect of the community, if it is to be trusted by 
 courts and by others who have to do with the administration of 
 justice, its members must realize that a crime is a crime, whosoever 
 commits it ; and while the highest as well as the lowest criminal is 
 entitled to the protection that the law gives, is entitled to have 
 counsel of his selection, and is entitled to all the safeguards that 
 have been devised for his protection, neither his wealth nor prom- 
 inence will protect a lawyer in going outside of his professional 
 obligations to shield him from the consequences of his acts." ** 
 
 The power to disbar or suspend an attorney is distinct, of 
 course, from the power to punish him for contempt.^* 
 
 § 758. Inherent Power. — From the very earliest times the 
 right to punish attorneys by suspension or disbarment, as well as 
 for contempt, has been exercised by the courts as an inherent 
 
 IZ Scott V. Van Alstyne, 9 Johns. l* Per Ingraham, J. In re Kobin- 
 
 (N. Y.) 216; Ex p. Thompson, 32 son, 140 App. Div. 329, 125 N. Y. S. 
 
 Ore. 499, 52 Pac. 570, 40 L.R.A. 194. 193. 
 
 lain re Dellenbaugh, 9 Ohio Cir. win re Boone, 83 Fed. 944; Tn re 
 
 Dec. 325, 17 Ohio Cir. Ct. lOfi, af- Adriaans, 17 App. Cas. (D. C.) 39. 
 
 firnled 62 Ohio St. 658, 58 N. E. And see infra, § 791, as to contempts 
 
 1098. generally. 
 
1168 
 
 SUSPENSION AND DISBAEMENT GENERALLY. [§758 
 
 power ; ^® indeed, it has been truthfully said that nothing is better 
 
 IB England. — Ex p. Brounsall, 2 
 Cowp. 829; In re Martin, 6 Beav. 
 337; In re Hardwick, 12 Q. B. D. 
 148, 53 L. J. Q. B. 64, 49 L. T. N. 
 S. 584, 32 W. R. 191; Rex. v. Bach, 
 9 Price 349. 
 
 Canada. — In re Currie, 25 Grant. 
 Ch. (U. C.) 338; Re Titus, 5 Ont. 92. 
 
 United States. — Bradley v. Fisher, 
 13 Wall. 354, 20 U. S. (L. ed.) 652; 
 Ex p. Robinson, 19 Wall. 512, 22 U. 
 S. (L. ed.) 208; Ex p. Secombe, 19 
 How. 13, 15 U. S. (L. ed.) 566; Ex 
 p. Burr, 2 Cranch (CO.) 389, 4 Fed. 
 Cas. No. 2,186; Ex p. Cole, 1 Mc- 
 Crary 405, 6 Fed. Cas. No. 2,973. In 
 re Boone, 83 Fed. 948. 
 
 Arkansas. — Beene v. State, 22 Ark. 
 149; Wernimont v. State, 101 Ark. 
 210, Ann. Cas. 1913D 1156, 142 S. 
 W. 194. 
 
 California. — Cohen v. Wright, 22 
 Cal. 293; Pedersen v. Superior Court, 
 149 Cal. 389, 86 Pac. 712. 
 
 Colorado. — People v. Green, 9 Colo. 
 506, 13 Pac. 514; In re Walkey, 26 
 Colo. 161, 56 Pac. 576. 
 
 Comiecticut. — In re Durant, 80 
 Conn. 140, 10 Ann. Cas. 539, 67 Atl. 
 497. 
 
 District of Columhia. — Matter of 
 Adriaans, 17 App. Cas. 46. 
 
 Florida.—Sta,te v. Kirke, 12 Fla. 
 284, 95 Am. Dec. 314. 
 
 Hawaii. — See Matter of Cooper, 12 
 Hawaii 124. 
 
 Illinois. — People v. Goodrich, 79 
 111. 148; Moutray v. People, 162 111. 
 194, 44 N. E. 496; People v. George, 
 186 111. 126, 57 N. E. 804; People 
 r. Chamberlain, 242 111. 260, 89 N. 
 E. 994. 
 
 Kansas. — Farlin r. Sook, 30 Kan. 
 401, 1 Pao. 123, 46 Am. Rep. 100; 
 
 In re Wilson, 79 Kan. 450, 100 Pac. 
 75. 
 
 Kentucky. — Rice v. Com., 18 B. 
 Mon. 472; Baker v. Com., 10 Bush 
 599; Nelson v. Com., 128 Ky. 779, 
 109 S. W. 337; Com. v. Roe, 129 Ky. 
 650, 112 S. W. 683; Underwood v. 
 Com., 105 S. W. 156, 32 Ky. L. Rep. 
 32. 
 
 Louisiana. — State v. Rightor, 49 
 La. Ann. 1015, 22 So. 195. 
 
 Maine. — Sanborn v. Kimball, 64 
 Me. 140. 
 
 Massachusetts. — Manning v. 
 French, 149 Mass. 391, 21 N. E. 945, 
 4 L.R.A. 339; Burrage v. Bristol 
 County, 210 Mass. 299, 96 N. E. 
 719. See also Boston Bar Ass'n v. 
 Greenhood, 168 Mass. 169, 46 N. E. 
 568. 
 
 Michigan. — In re Mains, 121 Mich. 
 608, 80 N. W. 714; In re Radford, 
 168 Mich. 474, 134 N. W. 472. 
 
 Missouri. — State v, Laughlin, 73 
 Mo. 443; State v. Harber, 129 Mo. 
 294, 31 S. W. 889; State v. Mullins, 
 129 Mo. 236, 31 S. W. 744; In re 
 Bowman, 7 Mo. App. 569; State v. 
 Clopton, 15 Mo. App. 589; State v. 
 Gebhardt, 87 Mo. App. 549; Neff v. 
 Kohler Mfg. Co., 90 Mo. App. 296. 
 
 Nebraska. — State v. Burr, 19 Neb. 
 593, 28 N. W. 261; In re Newby, 76 
 Neb. 482, 107 N. W. 850. 
 
 Nevada. — In re Breen, 30 Nev. 164, 
 93 Pac. 997, 17 L.R.A.{N.S.) 572. 
 
 New Hampshire. — Delano's Case, 58 
 N. H. 5, 42 Am. Rep. 555. 
 
 New York. — Matter of Cooper, 22 
 N. Y. 67 ; In re Percy, 36 N. Y. 651 ; 
 Matter of Silkman, 88 App. Div. 104, 
 84 N. Y. S. 1025. 
 
 North Carolina. — Ex p. Biggs, 64 
 N. C. 202; Matter of Moore, 64 N. C. 
 
§ t58] teuSPENSION AND DISBABMENT GENERALLY. 
 
 1169 
 
 settled than the fact of the existence of this power," and that the 
 court may exercise it with as much propriety as if it were em- 
 bedded in the constitution or declared by statute,^' in the absence 
 of restrictive legislation.*' This summary power of courts of com- 
 petent jurisdiction/" therefore, exists independently of statute, 
 and may be exercised as necessity requires.* 
 
 398; Matter of Ebbs, 150 N. C. 44, 
 17 Ann. Cas. 592, 63 S. E. 190, 19 
 L.R.A.(N.S.) 892. 
 
 North Dakota. — In re Simpson, 9 
 N. D. 404, 83 N. W. 541. 
 
 Ohio. — In re Swadener, 5 Ohio Dec. 
 598; In re Thatcher, 80 Ohio St. 492, 
 89 N. E. 39. 
 
 Oklahoma. — In re Mosher, 24 Okla. 
 «1, 20 Ann. Cas. 209, 102 Pac. 705, 
 24 L.K.A.(N.S.) 530; State Bar Com- 
 mission V. Sullivan, 35 Okla. 745, 131 
 Pac. 703. 
 
 Oregon. — State v. Winton, 11 Ore. 
 456, 5 Pac. 337, 50 Am. Rep. 486, Ex 
 p. Finn, 32 Ore. 519, 52 Pac. 756, 67 
 Am. St. Rep. 550. 
 
 Pennsylvania. — Austin's Case, 5 
 Rawle 204, 28 Am. Dec. 657; In re 
 Davies, 93 Pa. St. 116, 39 Am. Rep. 
 729; Serfass's Case, 116 Pa. St. 455, 
 9 Atl. 674; In re Smith, 179 Pa. St. 
 22, 36 Atl. 134; In re Hirst, 9 Phila. 
 216, 31 Leg. Int. 340. 
 
 South Carolina. — State v. Holding, 
 1 McCord L. 379; In re Duncan, 64 
 S. C. 476, 42 S. E. 433. 
 
 South Dakota. — In re Egan, 22 S. 
 D. 355, 117 N. W. 874; Danforth v. 
 Egan, 23 S. D. 43, 20 Ann. Cas. 418, 
 119 N. W. 1021, 139 Am. St. Rep. 
 1030. 
 
 Tennessee. — Fields v. State, 1 Mart. 
 & Y. 171; Brooks v. Fleming, 6 Baxt. 
 337; Smith v. State, 1 Yerg. 228. 
 
 Texas. — Jaekson v. State, 21 Tex. 
 668. 
 
 Attys. at L. Vol. II.— 74. 
 
 Utah. — Morrison v. Snow, 26 Utah 
 247, 72 Pae. 924; In re Evans, 130 
 Pac. 217. 
 
 Vermont. — ^In re Jones, 70 Vt. 86, 
 39 Atl. 1087. 
 
 Washington. — Matter of Lambuth, 
 18 Wash. 478, 51 Pac. 1071; State r. 
 Grover, 47 Wash. 39, 91 Pac. 564; 
 In re Robinson, 48 Wash. 153, 15 
 Ann. Cas. 415, 92 Pac. 929, 15 L.R.A. 
 (N.S.) 525; State v. Rossman, 53 
 Wash. 1, 17 Ann. Cas. 625, 101 Pac. 
 357, 21 L.R.A.(N.S.) 821. 
 
 West Virginia. — State v. McClaugh- 
 erty, 33 W. Va. 250, 10 S. E. 407; 
 State V. Stiles, 48 W. Va. 425, 37 S. 
 E. 620; State v. Hays, 64 W. Va. 
 45, 61 S. E. 356. 
 
 Wisconsin.— Yeviaon County Bar 
 Ass'n V. McKibbin, 153 Wis. 350, 141 
 N. W. 283. 
 
 17 State V. Laughlin, 10 Mo. App. 1 . 
 
 "Danforth v. Egan, 23 S. D. 43, 
 20 Ann. Cas. 418, 119 N. W. 1021, 
 139 Am. St. Rep. 1030. 
 
 19 In re Ebbs, 150 N. C. 44, 17 Ann. 
 Cas. 592, 63 S. E. 190, 19 L.R.A. 
 (N.S.) 892. And see the following 
 section. 
 
 20 See infra, § 764 et seq. 
 
 1 Com. V. Roe, 129 Ky. 650, 112 S. 
 W. 683, 19 L.R.A.(N.S.) 413; State 
 V. Harber, 129 Mo. 271, 31 S. W. 889; 
 State I. Gebhardt, 87 Mo. App. 542; 
 In re Breen, 30 Nev. 164, 93 Pac. 997, 
 17 L.R.A.(N.S.) 572; In re Evans, 
 (Utah) 130 Pac. 217. 
 
1170 SUSPENSION AND DISBARMENT GENEEALLY. [§^759 
 
 § 759. As Affected by Statute. — The quest^^tf" whether 
 the power to admit and disbar attorneys is a judicial or a legisla- 
 tive function has been given some prominence in the books; this 
 subject has been considered heretofore in connection vyith the 
 power to admit attorneys to practice, and the principles there 
 stated are equally applicable here.* It is not doubted, of course, 
 that the legislature may regulate as to the disbarment of attorneys, 
 and that such regulation will be binding on the courts.* So, the 
 legislature may, and frequently does, specify causes for disbar- 
 ment ; but a statutory enumeration of grounds of disbarment is not 
 to be taken as a limitation on the general power of the court in this 
 respect; and, notwithstanding such legislation, attorneys may be 
 removed for common-law causes whenever the exercise of their 
 privileges and functions becomes inimical to the due administra- 
 tion of justice.* The legislature cannot limit the courts in their 
 right to determine the moral qualifications of attorneys or prevent 
 them from refusing to admit morally unfit persons to the practice 
 of the law ; * and even conceding that the legislature has the power 
 
 * See SMpra, §§ 28, 29. Missouri. — State v. Laughlin, 30 
 
 3 People V. Kavanagh, 220 111. 49, Mo. App. 1; State v. Gebhardt, 87 
 77 N. E. 107, 110 Am. St. Kep. 223; Mo. App. 542. 
 
 Ex p. Smith, 28 Ind. 47; State v. Nevada. — In re Breen, 30 Nev. 164, 
 
 Byrkett, 4 Ohio Dec. 89; State i'. Mc- 93 Pac. 997, 17 L.R.A. ("N.S. ) 572. 
 Claugherty, 33 W. Va. 250, 10 S. E. Neio York.— In re Percy, 36 N. Y. 
 
 407. 651. 
 
 4 United States. — In re Boone, 83 North Carolina. — In re Ebbs, 150 
 Fed. 944. N. C. 44, 17 Ann. Cas. 592, 63 S. E. 
 
 /moo.— State v. Mosher, 128 la. 82, 190, 19 L.R.A.{N.S.) 892. Compare 
 
 5 Ann. Cas. 984, 103 N. W. 105. Ex p. Schenck, 65 N C. 353; Kane v. 
 
 Kansas. — In re Smith, 73 Kan. Haywood, 66 N. C. 1. 
 
 743, 85 Pac. 584. OMo.—Iti re Thatcher, 80 Ohio St. 
 
 Kentucky.— ^^lelaon v. Com., 128 Ky. 492, 89 N. E. 39. 
 
 779, 109 S. W. 337, 16 L.R.A. (N.S.) Oklahoma.— St&te Bar Commi.'ision 
 
 272, 33 Ky. L. Rep.. 143; Com. i;. Roe, v. Sullivan, 35 Okla. 745, 131 Pac. 
 
 129 Ky. 650, 112 S. W. 683, 19 L.R.A. 703. 
 
 (N.S.) 413. South Dakota. — In re Egan, 22 S. 
 
 Massachusetts. — Bar Assoc, of Bos- D. 355, 117 N. W. 874. 
 
 ton f. Greenhood, 168 Mass. 169, 46 West Virginia. — State v. Mc- 
 
 N. E. 568. Claugherty, 33 W. Va. 250, 10 S. E. 
 
 Michigan. — In re Mills, 1 Mich. 407. 
 
 392. 6 In re Platz, (Utah) 132 Pac. 390. 
 
§ 760] SUSPENSION AND DISBAEMENT GENERALLY. 1171 
 
 to specify exclusive grounds for the disbarment of attorneys, and 
 thereby to limit the inherent power which the court has exercised 
 from time immemorial, it will not be deemed to have done so un- 
 less its purpose is clearly expressed.' Nor does a constitutional 
 provision to the effect that certain persons shall be eligible to prac- 
 tice as attorneys in a newly formed state, prevent the state court 
 from disbarring such persons for good cause.' Under some stat- 
 utes, however, it has been held that the courts are bound by the 
 causes for disbarment specified by the legislature.* 
 
 § 760. Basis of Power. — The basis of the power to suspend 
 or disbar attorneys at law is to be found in the fact that they are 
 officers of the court, bound to uphold and maintain the dignity of 
 the law, and to refrain from such conduct as may have a tendency 
 to bring it into disrepute.' Integrity, as well as learning, is essen- 
 tial to members of the legal profession, and it becomes the duty 
 of the bench, as well as of the bar, to preserve those qualities.*" 
 Indeed, the discipline of attorneys is not only a matter of vital 
 public interest,** but it is equally essential to the due and orderly 
 administration of justice,** and the protection of the court.*' And 
 in exercising the power of disbarment or suspension, the inquiry 
 is always in the nature of an investigation by the court into the 
 conduct of one of its own officers, and the exercise of disciplinary 
 jurisdiction.** "It is our duty," said the court in a recent case, 
 
 6 In re Smith, 73 Kan. 743, 85 Pac. Cas. 19]3D 1156, 142 S. W. 194; Mat- 
 
 584. ter of Disbarment of Lyons, 162 Mo. 
 
 Tin reMosher, 24 Okla. 61, 20 Ann. App. 688, 145 S. W. 844; Diclcens' 
 
 Cas. 209, 102 Pac. 705. Case, 67 Pa. St. 169, 5 Am. Rep. 420. 
 
 sin re Collins, 147 Cal. 8, 81 Pae. li Burrage v. Bristol County, 210 
 
 220; In re Treadwell, (Cal.) 4 Pac. Mass. 299, 96 N. E. 719. 
 
 1192; In re Eaton, 4 N. D. 514, 62 12 In re Boone, 83 Fed. 944. 
 
 N. W. 597. 18 In re Bowman. 7 Mo. App. 569. 
 
 9 Wernimont I'. State, 101 Ark. 210, "In re Durant, 80 Conn. 140, 10 
 Ann. Cas. 1913D 1156, 142 S. W. 194; Ann. Cas. 539, 67 Atl. 497. See also 
 Haverty v. Haverty, 35 Kan. 438, 11 In re Hardwiek, L. R. 12 Q. B. (Eng.) 
 Pac. 364; Morrison v. Snow, 26 Utah 148; Ex p. Garland, 4 Wall. 333, 18 
 247, 72 Pac. 924; McWhirter v. Don- U. S. (L. ed.) 366; Fairfield County 
 aldson, 36 Utah 293, 104 Pac. 731. Bar v. Taylor, 60 Conn. 11, 22 Atl. 
 
 10 In re Boone, 83 Fed. 944 ; Werni- 441, 13 L.R.A. 767. 
 mont v. State, 101 Ark. 210, Ann. 
 
1172 SUSPENSION AND DISBAEMENT GENEEALLY. [§ 761 
 
 " to condemn conduct which tends to impair or defeat the admin- 
 istration of justice or degrade and impair the usefukiess of the 
 profession, and protect the state and the public from lawyers who 
 prostitute the authority given to them for private gain by impos- 
 ing on or defrauding their clients or the tribunals which are in- 
 stituted to administer the law, and protect those whose rights and 
 interests are committed to their care. If this country is to be 
 governed by law, it is essential that those charged with its admin- 
 istration should be honest in the discharge of the duties confided 
 to and obligations imposed upon them." *® 
 
 § 761. Nature of Power. — The power of the court to disbar 
 or suspend an attorney, however, is not an arbitrary or despotic 
 one, to be exercised at its pleasure, or because of prejudice or per- 
 sonal hostility ; '* but, on the other hand, it must be exercised with 
 sound judicial discretion," due caution,*' and moderation ; *' 
 ;guarding the rights and independence of the bar as well as the dig- 
 nity and authority of the court.^" It is a power which should only 
 be exercised for the most weighty reasons, such as would render 
 the continuance of the attorney in practice incompatible with a 
 proper respect of the court for itself, or a proper regard for the 
 integrity of the profession ; * the question for determination be- 
 
 15 In re Flannery, 150 App. Div. 13 L.R.A. 767 ; In re Durant, 80 Conn. 
 369, 135 N. Y. S. 612. 140, 10 Ann. Cas. 539, 67 Atl. 497. 
 
 16 Ex p. Secombe, 19 How. 9, 15 Maryland. — ^Miles v. Stevenson, 80 
 U. S. (L. ed.) 565; In re Egan, 24 Md. 358, 30 Atl. 646. 
 
 S. D. 301, 123 N. W. 478; State v. Pennsylvania.— In re Davies, 93 
 
 Stiles, 48 W. Va. 425, 37 S. E. 620. P^- St- 116, 39 Am. Rep. 729. 
 
 17 United States.— Ex p. Secombe, " Bradley v. Tochman, 1 Hayw. & 
 
 H. 263, 3 Fed. Cas. No. 1,788; Wernl- 
 
 19 How. 9, 15 U. S. (L. ed.) 565; Ex 
 p. Garland, 4 Wall. 333, 18 U. S. (L. 
 ed.) 366; Ex p. Bradley, 7 Wall. 
 
 mont V. State, 101 Ark. 210, Ann. 
 
 Cas. 1913D 156, 142 S. W. 194. 
 
 19 In re Durant, 80 Conn. 140, 10 
 364. 19 U. S. (L. ed.) 214; Ex p. ^„^ ^^ 539^ g^ ^^j 49^. ^^^ ^_ 
 
 Burr, 9 Wheat. 529, 6 U. S. (L. ed.) -^^^^ ^^9 Ky. 650, 112 S. W. 683, 19 
 
 152; Ex p. Wall, 107 U. S. 265, 2 S. L.R.A. (N.S.) 413. 
 
 Ct. 569, 27 U. S. (L. ed.) 552; In re 20 state i'. Laughlin, 10 Mo. App. 
 
 Boone, 83 Fed. 944; In re Thatcher, 1. 
 
 ] 90 Fed. 969. 1 Bradley v. Fisher, 13 Wall. 354, 20 
 
 Connecticut. — Fairfield County Bar U. S. (L. ed.) 646; Ex p. Burr, 9 
 
 V. Taylor, 60 Conn. 11, 22 Atl. 441, Wheat. 529, 6 U. S. (L. ed.) 152; In 
 
§ 762] SUSPENSION AND DISBARMENT GENEEALLY. 1173 
 
 ing whether or not the attorney is a fit person to be longer allowed 
 the privileges of the bar.* 
 
 Purpose and Effect of Suspension and Disharment. 
 
 § 762. Purpose. — The purpose of suspending or disbarring 
 an attorney is not to punish him, but to preserve courts of justice 
 from the official ministration of persons unfit to practice in them, 
 and thereby to guard the administration of justice and protect the 
 public;* that it also punishes the attorney is wholly incidental.* 
 Indeed, it is only necessary to call attention to the fact that one al- 
 ready punished for the commission of a crime may be disbarred 
 because thereof,' to show that disbarment proceedings are not in- 
 voked for the purpose of inflicting punishment.® The admission of 
 one to practice law is a certificate from the court that such person 
 possesses mental and moral qualifications for an ofiice which has an 
 intimate and vital relation to the administration of justice ; ' and 
 whenever the courts shall become persuaded that an attorney has 
 lost these qualifications, essential to his usefulness and necessary 
 to the safety of his employers, they are wanting in their duties if 
 they do not take away his means and destroy his opportunities for 
 
 re Boone, 83 Fed. 944; In re Thatcher, Massachusetts. — Boston Bar Aaao- 
 
 190 Fed. 969. ciation v. Greenhood, 168 Mass. 169, 
 
 2 Fairfield County Bar v. Taylor, 46 N. E. 568. 
 
 60 Conn. 11, 22 Atl. 441, 13 L.R.A. Michigan. — In re Shepard, 109 
 
 767; In re Durant, 80 Conn. 140, 10 Mich. 631, 67 N. W. 971; In re Ead- 
 
 Ann. Gas. 539, 67 Atl. 497. ford, 168 Mich. 474, 134 N. W. 472. 
 
 3 England. — Ex p. Brounsall, 2 New York. — Matter of Boland, 127 
 Cowp. 829. App. Div. 746, 752, 111 N. Y. S. 932. 
 
 United States. — Ex p. Bradley, 7 Ohio. — In re Palmer, 8 Ohio Gir. 
 
 Wall. 364, 19 U. S. (L. ed.) 214; Ex Dec. 508, 15 Ohio Cir. Ct. 94. 
 
 p. Wall, 107 U. S. 265, 2 S. Ct. 569, South Dakota.— In re Egan, 24 S. 
 
 27 U. S. (L. ed.) 552; In re Thatcher, D. 301, 123 N. W. 478. 
 
 190 Fed. 969. * In re Thatcher, 190 Fed. 969. 
 
 Connecticut. — Fairfield County Bar » See infra, §§ 853-864. 
 
 V. Taylor, 60 Conn. 11, 22 Atl. 441, 6 In re Thatcher, 190 Fed. 969. 
 
 13 L.E.A. 767; In re Durant, 80 'In re Thatcher, 190 Fed. 969. And 
 
 Conn. 140, 10 Ann. Cas. 539, 67 Atl. see also supra, §§ 34, 41-50. 
 497. 
 
1174- 
 
 SUSPENSION AND DISBAEMENT GENEEALLY. [§ 763 
 
 mischievous action.' The desired end cannot be effectually ob- 
 tained in any other way.' 
 
 § 763. Effect. — Formerly each court might, for itself, sus- 
 pend or disbar the attorneys who practiced therein, but such judg- 
 ment was not effective in other courts.^" Thus, in jurisdictions 
 having a separate chancery court it was held that a proceeding for 
 disbarment therein did not affect the respondent's connection with 
 the law court.'^^ This condition of affairs was remedied in Eng- 
 land many years ago.^^ In this country most jurisdictions, either 
 under statute or by judicial decree, recognize the unfitness of one 
 who has been disbarred in another court, and even in another ju- 
 risdiction ; " and it is generally held that the disbarment or sus- 
 pension of an attorney by one court of a state is operative in all 
 other courts of that state.** 
 
 The disbarment of an attorney is an adjudication that he 
 does not possess the requisite qualifications in order to be 
 entitled to practice law ; '° in other words, he is not "learned 
 
 8 United States. — In re Thatolier, 
 190 Fed. 969. 
 
 District of Columhia. — In re Ad- 
 riaans, 17 App. Cas. 39. 
 
 Missouri. — Matter of Lyons, 162 
 Mo. App. 688, 145 S. W. 844. 
 
 Ohio. — State v. Hand, 9 Ohio 42. 
 
 Oregon.— Sta,te i: Finn, 32 Ore. 519, 
 52 Pae. 758, 67 Am. St. Rep. 550. 
 
 9 State I. Laughlin, 10 Mo. App. 1. 
 
 10 Ex p. Tillinghast, 4 Pet. 108, 7 
 U. S. (L. ed.) 798; Ex p. Bradley, 
 7 Wall. 364, 19 U. S. (L. ed.) 214; 
 Bradley r. Fisher, 13 Wall. 335, 20 
 U. S. (L. ed.) 646; In re Thatcher, 
 190 Fed. 969; State v. Kirke, 12 Fla. 
 278, 95 Am. Dec. 315; Moutray v. 
 People, 162 111. 194, 44 N. E. 496. 
 
 11 In re Hoffecker, (Del.) 60 Atl. 
 981. But see In re Peterson, 3 Paige 
 (N. Y.) 510. 
 
 18 See Stats. 22, 24 Vict. (1860), c. 
 127, § 25. See also Ex p. Hague, 3 
 Brod. & B. (Eng.) 257; Ex p. Yates, 
 
 9 Bing. 455, 23 E. C. L. 331; In re 
 Whytehead, 4 M. & G. 768, 43 E. C. 
 L. 396; Matter of Collins, 18 C. B. 
 272, 86 E. C. L. 272. 
 
 IS State V. Mosher, 128 la. 82, 5 
 Ann. Cas. 984, 103 N. W. 105; In re 
 Evans, 22 Utah 388, 62 Pac. 913, 83 
 Am. St. Eep. 794, 53 L.R.A. 952. 
 
 14 Wilson r. Popham, 91 Ky. 327, 
 15 S. W. 859, 12 Ky. L. Rep. 904; 
 Cobb r. Judge of Superior Court, 43 
 Mich. 289, 5 N. W. 309 ; In re Peter- 
 son, 3 Paige (N. Y.) 510; Danforth 
 V. Egan, 23 S. D. 43, 20 Ann. Cas. 
 418, 119 N. W. 1021, 139 Am. St. Eep. 
 1030. 
 
 A statute in New York provides 
 that the suspension or removal of an 
 attorney or counselor, by the su- 
 preme court, operates as a, suspension 
 or removal in every court of the state. 
 Judiciary Law, § 47S. 
 
 15 See aso In re Schull, 25 S. D. 
 602, 127 N. W. 54i, 
 
§ 764] SUSPENSION AfTD DISBAEMENT GENEEALLT. 
 
 1175 
 
 in the law," ^* and, cpnseqiTently, he cannot thereafter prac- 
 tice as an attorney.^'' Nor will a disbarred attorney be eligible 
 to any office where these qualifications are required. Thus, he 
 may not occupy the position of prosecuting attorney,^' or attor- 
 ney-general.^* Of course, where an order of suspension only is 
 entered, the court may therein provide that the respondent be per- 
 mitted to perform his official duties as district attorney.^" A dis- 
 barred or suspended attorney has no authority to act in his pro- 
 fessional capacity, even to move to open a default judgment taken 
 against a client ; * his brief in a pending appeal will not be con- 
 sidered by the appellate court,^ and if he attempts to practice or 
 holds himself out as an attorney, he is guilty of contempt.' 
 
 Jurisdiction. 
 
 § 764. In General. — In nearly all jurisdictions legislation 
 has designated the court wherein disbarment proceedings may be 
 prosecuted, and, of course, such a regulation is binding.* In some 
 
 ISDanforth v. Egan, 23 S. D. 43, 
 20 Ann. Cas. 418, 119 N. W. 1021, 
 139 Am. St. Rep. 1030. 
 
 "In re Duncan, 83 S. C. 186, 18 
 Ann. Cas. 657, 65 S. E. 210, 24 L.R.A. 
 (N.S.) 750. 
 
 "People V. Hallett, 1 Colo. 352; 
 Brown v. Woods, 2 Okla. 601, 39 Pac. 
 473; Danforth v. Egan, 23 S. D. 43, 
 20 Ann. Cas. 418, 119 N. W. 1021, 
 139 Am. St. Rep. 1030. And see also 
 supra, § 692. 
 
 Compare State v. Swan, 60 Kan. 
 461, 56 Pac. 750, wherein it was held 
 -that the local law would not require 
 the prosecuting officer to be an altor- 
 nej'. This, however, is no longer true 
 in Kansas. See supra, § 692. 
 
 "See supra, §§ 724, 731. 
 
 20 In re Maestretti, 30 Nev. 187, 
 ■93 Pac. 1004. 
 
 1 McDonald v. Kane, 34 Misc. 672, 
 120 N. Y. S. 283. 
 
 3 Engesser v. Northern Pac. R. Co., 
 18 Mont. 31, 44 Pac. 279; Stebbins 
 r. Morris, 18 Mont. 32, 44 Pac. 280. 
 
 3 State r. Richardson, 125 La. 644, 
 51 So. 673; In re Duncan, 83 S. C. 
 186, 18 Ann. Cas. 657, 65 S. E. 210, 
 24 L.R.A.(N.S.) 750. 
 
 That a suspended attorney acted 
 upon the advice of reputable counsel 
 to the effect that certain acts which 
 he did after suspension would not vio- 
 late the order of suspension, will not 
 prevent him from being guilty of tech- 
 nical contempt of court, if such acts 
 did violate the order. State v. Rich- 
 ardson, 125 La. 644, 51 So. 673. 
 
 4 United States. — See Ex p. Burr, 
 2 Cranch (C. C.) 379, 4 Fed. Cas. 
 No. 2,186. 
 
 Connecticut. — Fairfield County Bar 
 r. Taylor, 60 Conn. 11, 22 Atl. 441, 
 13 L.R.A. 767. 
 
 Illinois. — Winkelman v. People, 50 
 111. 449. 
 
1176 
 
 SUSPENSION AND DISBARMENT GENERALLY. [§ 765 
 
 instances it is provided that such proceedings may be had in any 
 court of record,* or in courts of general or superior jurisdiction,* 
 or in the court of the attorney's domicile ; ' and in some states con- 
 current jurisdiction has been conferred on two or more courts.* 
 As a rule, however, disbarment proceedings should be instituted 
 in a court of civil jurisdiction, and in some instances this is re- 
 quired.' The local statutes should be consulted. While the action 
 of the court in admitting a person to practice law or in striking his 
 name from the roll for any reason is of a judicial nature, the con- 
 stitutional authority of the court is not limited as in proceedings 
 between parties, and the mere lapse of a term will not disable the 
 court from striking from the roll the name of an attorney errone- 
 ously given a license to practice.*" 
 
 § 765. Courts Having Power to Admit Attorneys. — 
 
 In the absence of legislation providing otherwise, attorneys may be 
 disbarred by courts of record which have authority to admit them 
 to practice therein ; ** but there is no necessary connection between 
 
 loyM. — state v. Mosher, 128 la. 82, 
 5 Ann. Cas. 984, 103 N. W. 105. 
 
 Louisiana. — State v. Rightor, 49 
 La. Ann. 1015, 22 So. 195; State v. 
 Fourehy, 106 La. 743, 31 So. 325. 
 
 Missouri. — State v. Laughlin, 73 
 Mo. 443; State v. Peabody, 63 Mo, 
 App. 378. 
 
 Nebraska. — In re Newby, 76 Neb. 
 482, 107 N. W. 853. 
 
 Nevada. — In re Breen, 30 Nev. 164, 
 93 Pac. 997, 17 L.E.A.(N.S.) 572. 
 
 NeiD rw/c— Laws of 1912, e. 253 
 (Chase's Code of Civil Procedure, 
 § 67) ; In re Flannery, 150 App. Div. 
 369, 135 N. Y. S. 612. 
 
 North Dakota. — In re Freerks, 11 
 N. D. 120, 90 N. W. 265. 
 
 Oftio.— In re Thatcher, 80 Ohio St. 
 492, 89 N. E. 83; In re Dellenbaiigh, 
 9 Ohio Cir. Dec. 325, 17 Ohio Cir. 
 pt. 106. 
 
 South Dakota. — In re Duncan, 64 
 S. C. 461, 42 S. E. 433. 
 
 B Mattler v. Schaffner, 53 Ind. 245 ; 
 State V. Mosher, 128 la. 82, 5 Ann. 
 Cas. 984, 103 N. W. 105. 
 
 6 State V. Fort, 178 Mo. 518, 77 S. 
 W. 741; In re Evans, (Utah) 130 
 Pae. 217. 
 
 ' Chevalon v. Schmidt, 11 Rob. 
 (La.) 91; Turner v. Walsh, 12 Rob. 
 (La.) 383. 
 
 8 In re Delmas, 139 Cal. xix, mem.^ 
 72 Pac. 402. 
 
 9 Mattler v. Schaffner, 53 Ind. 245 ; 
 Com. f. Richie, 114 Ky. 366, 70 S. 
 W. 1054, 24 Ky. L. Rep. 1218. Com- 
 pare Ex p. Steinman, 8 W. N. C. 
 (Pa.) 296. 
 
 10 Vernon County Bar Assoc, f. 
 McKibbin, 153 Wis. 350, 141 N. W. 
 283. 
 
 11 United States.— lEx p. Wall, 107 
 U. S. 265, 2 S. Ct. 569, 27 U. S. (L. 
 ed.) 552, 27 Alb. L. J. 406, 5 Ky. L. 
 Kep. 2. 
 
§§ 766, T67] SUSPENSION and disbarment geneeally. 1177 
 
 the power to admit to practice and the power to disbar for subse- 
 quent misconduct ; and the legislature may confer on any court of 
 the state the power to suspend or disbar attorneys,** and it is usual 
 to confer this power on a particular court.*^ And it has been held 
 that a statute which confined, to a particular court, the power of 
 admitting attorneys to the bar, did not take away the jurisdiction, 
 theretofore possessed by other courts under statute, to suspend or 
 remove attorneys from office.'* 
 
 § 766. Court before Which Attorney Practices. — Some 
 statutes authorize the institution of disbarment proceedings in any 
 court in which the attorney practices,'* and, in such case, the court 
 designated will have jurisdiction, even though the respondent does 
 not reside within the county or judicial district wherein the court 
 is located ; '^ and it is immaterial that the respondent's right to 
 practice in such court was not derived from it." So, in the absence 
 of legislation to the contrary, the court whose conduct is questioned 
 or attacked by an attorney practicing before it, is the proper au- 
 thority to dispose of disbarment proceedings, based on such. con- 
 duct, against the attorney.'' Thus, it has been held that a court of 
 quarter sessions has jurisdiction to disbar an attorney for such 
 misbehavior.'® 
 
 § 767. Appellate Courts. — It has been held that an appel- 
 late court has original jurisdiction to disbar an attorney either for 
 
 California. — ^People v. Turner. 1 n See the preceding section. 
 
 Cal. 190. i*In re Dellenbaugh, 9 Ohio Cir. 
 
 Gomieeticut.— In re Westeott, 66 Dec. 325, 17 Ohio Cir. Ct. 106. 
 
 Conn. 585, 34 Atl. 505. 15 In re Darrow, 175 Ind. 44. 9Z 
 
 Missowri.—St3.te v. Fort, 178 Mo. N. E. 369. 
 
 518, 77 S. W. 741. 18 In re Darrow, 175 Ind. 44, 92 N. 
 
 New Hampshire. — In re Bryant, 24 E. 369. 
 
 N. H. 149. "State v. Kirke, 12 Fla. 278, 95 
 
 New York. — In re Burchard, 27 Am. Dec. 314. 
 
 Hun 429. ^' In re Smith, 2 Lack. Leg. N. 
 
 Ohio.— In re Thatcher, 80 Ohio St. (Pa.) 152. 
 
 492, 89 N. E. 39. "Ex p. Steinman, 8 W. N. C. (Pa.>, 
 
 18 Slate V. Mosher, 128 la. 82, 5 296. 
 Ann. Cas. 984, 103 N. W. 105. 
 
1178 SUSPENSION AND DISBAEMENT GENEEALLY. [§§ 768, 769 
 
 misconduct committed tlierein,*" or in the trial court/ and this 
 power has been held to exist in intermediate appellate courts.^ 
 In some jurisdictions appellate courts are designated by statute 
 as the proper tribunal for the hearing of disbarment proceedings,* 
 and in others, on appeal thereto, such proceedings are tried de 
 novo} So, the Court of Appeals of England, under the judicature 
 acts, has jurisdiction to entertain an application to strike the 
 name of a solicitor from its roll, even though the case does no]t 
 come before it by appeal.* 
 
 § 768. Inferior Courts. — An inferior court having no power 
 to admit attorneys to practice, may not revoke a license granted 
 by a superior court.' Thus, it has been held that a justice's court 
 has no power to suspend or disbar an attorney.'' And a like hold- 
 ing has been made as to a court established to "try criminal actions 
 alone." ' !N"or can an attorney be prevented from practicing his 
 profession by a board of county commissioners,^ or by a court-mar- 
 ■tial." ISTor can a city, by ordinance, confer power upon a police 
 magistrate to disbar attorneys from practicing in his court. *^ 
 
 § 769. Disbarment from Practicing in Certain Govern- 
 mental Departments. — An act of Congress authorizes the sec- 
 retary of the interior to suspend or exclude from practice before 
 his department any attorney shown to be incompetent or disrepu- 
 table, or who refuses to comply with the departmental rules and 
 
 20 Compare Matter of Lambuth, 18 6 In re Whitehead, 28 Ch. D. 
 
 Wash. 478, 51 Pac. 1071; Matter of (Eng.) 614, 54 L. J. Ch. 796, 52, L. 
 
 Waugh, 32 Wash. 58, 72 Pac. 710; T. N. S. 703, 33 W. E. 601. 
 
 In re Robinson, 48 Wash. 153, 15 Ann. 6 See also Com. r. Richie, 114 Ky. 
 
 Gas. 415, 92 Pac. 929, 15 L.'r.A.(N.S.) 366, 70 S. W. 1054; State v. Laughlin, 
 
 525. 73 Mo. 443. 
 
 1 People V. Green, 7 Colo. 237, 3 7 Baird v. Justice's Court, 11 Cal. 
 
 Pac. 65, 49 Am. Rep. 351; Ex p. App. 439, 105 Pac. 259. 
 
 Brown, 1 How. (Miss.) 303; In re 8 Mattler v. Schaffner, 53 Ind. 245. 
 
 Thatcher, 80 Ohio St. 492, 89 N. E. 9 Garrigus r. State, 93 Ind. 239 
 
 39. "State v. Crosby, 24 Nev. 115, 50 
 
 8 St. Louis Court of Appeals. State Pac. 127, 77 Am. St. Rep. 786. 
 
 V. Reynolds,. (Mo.) 158 S. W. 671. "State v. Peabody, 63 Mo. App. 
 
 3 See supra, § 764. 381. 
 
 4 See infra, § 896. 
 
§ 770] SUSPENSION AND DISBARMENT GENERALLY. 1179 
 
 i-egulations, or who shall, with intent to defraud, in any manner 
 deceive, mislead, or threaten any claimant, or prospective claim- 
 ant, by word, circular, letter, or advertisement; ^^and a like pro- 
 vision is made as to attorneys practicing before the treasury de- 
 partment. '* By merely taking ex parte depositions upon which 
 charges are subsequently based against an attorney practicing be- 
 fore the interior department, the secretary of that department 
 does not exceed his jurisdiction.'* But the secretary acts in ex- 
 cess of his jurisdiction where he considers and bases a disbarment 
 order on charges other than those which an attorney has been 
 cited to answer, and also on a deposition taken without notice.** 
 
 § 770. Jurisdiction to Disbar for Offenses Committed in 
 Another Court. — Where a particular court is designated by 
 statute as the tribunal for the hearing of disbarment proceedings, 
 such court has jurisdiction to disbar for misconduct occurring in 
 other courts within that jurisdiction.'^ Even in the absence of 
 legislative authority, it has been held that the federal court may 
 disbar one of its attorneys for participating in the unlawful tak- 
 ing of a prisoner from the custody of state ofScers, and lynching 
 him ; ''' and a state court may entertain disbarment proceedings 
 for misconduct committed by an attorney in a federal court,'* 
 as, for instance, by attacking an officer of the state court in a 
 pleading tiled in the federal court.'' It has also been held that 
 a conviction of crime in a federal court is ground for disbarment 
 in a state court.^" So, an attorney may be disbarred by the state 
 court for misconduct in a proceeding before officers of the United 
 
 12 23 Stat. L. 101, § 5; 2 Fed. St. 462, 94 N. Y. S. 331; State r. Biggs, 
 Ann. 16. See also Garfield v. V. S. 52 Ore. 433, 97 Pac. 713; State v. 
 32 App. Cas. (D. C.) 109. Grover, 47 Wash. 39, 91 Pac. .564. 
 
 13 23 Stat. L. 258, § 3; 2 Fed. St. See also In re Joseph, 125 App. Div. 
 Ann. 16. 544, 109 N. Y. S. 1018. 
 
 14 Garfield v. V. S., 32 App. Cas. 19 People v. Green, 9 Colo. 506, 13 
 ^D. C.) 109. Pac. 514. 
 
 15 Garfield v. U. S., 32 App. Cas. 20 Re Kirby, 10 S. D. 414, 73 N. 
 <D. C.) 153. W. 907, 39 L.K.A. 859. See also In 
 
 16 See supra, § 764. ' re Hopkins, 54 Wash. 569, 103 Pac. 
 
 17 In re Wall, 13 Fed. 814. 805. 
 
 18 Matter of Lamb, 105 App. Div. 
 
1180 SUSPENSION AND DISBAEMENT GENEEALLY. [§ 771 
 
 States land office.^ Nor will tlbe recommendation of a federal 
 judge, before whom an attorney has been convicted of obstructing 
 the administration of justice, prevent a state court from disciplin- 
 ing such attorney, though, undoubtedly, such recommendation will 
 be given due consideration and weight.^ On the other hand, it 
 has been held that disbarment by a circuit court of appeals for 
 filing a brief containing scandalous matter, was not sufficient 
 ground for disbarment in another circuit. In so deciding, the 
 court said: "I heartily approve of the action of the court of ap- 
 peals of the second circuit in suspending indefinitely the respond- 
 ents from practice before that court. The brief which they filed 
 was scandalous and insulting, and richly deserved the punish- 
 ment that was inflicted; but I have serious doubts whether the 
 circuit court for the eastern district of Pennsylvania, to which 
 they have been admitted to practice, ought to punish them again 
 for this single fault, aggravated though it was. It is quite clear 
 that, while this example of their professional delinquency was 
 aggravated, it falls short of criminal conduct ; and I think, there- 
 fore, that I should resolve the doubt in their favor concerning the 
 propriety of striking their names from the roll of attorneys of 
 this court, and should merely leave them to feel the well-deserved 
 punishment that was inflicted upon them by the court of appeals 
 for the second circuit." * 
 
 § 771. As to Offenses Committed in Another Juris- 
 diction. — It is well settled that the court may disbar an attorney 
 for misconduct committed in another jurisdiction.* Thus, an 
 attorney has been disbarred for acting in concert with others in 
 
 lln re , 73 Wis. 602, 42 223, 25 Pae. 99; In re KaflFenburgh, 
 
 N. W. 221. 188 N. Y. 49, 80 N. E. 570, affirm- 
 
 2In re Robinson, 140 App. Div. ing 115 App. Div. 346, 101 N. Y. S. 
 
 329, 125 N. Y. S. 193. 507; In re Marx, 115 App. Div. 448, 
 
 s Per McPherson, J., in In re Watt, 101 N. Y. S. 680 ; State v. Biggs, 
 
 149 Fed. 1009. 52 Ore. 433, 97 Pac. 713; State v. 
 
 4 People V. Gilmore, 214 111. 569, 73 Grover, 47 Wash. 39, 91 Pac. 564. 
 N. E. 737, 69 L.R.A. 701; In re Lamb, Compare In re Ebbs, 150 N. C. 44, 
 
 105 App. Div. 462, 94 N. Y. S. 331. 17 Ann. Cas. 592, 63 S. E. 190, 19 
 
 See also In re Knott, 71 Cal. 584, L.R.A. (N.S.) 892; Ex p. Quarrier, 2 
 
 12 Pac. 780; In re Baum, 10 Mont. W. Va. 569. 
 
§ 772] SUSPENSION AND DISBAEMENT GENERALLY. 1181 
 
 the commission of crime in San Domingo,' and for fighting a duel 
 and killing his adversary in another state/ and for offenses com- 
 mitted in pursuance of a scheme to defraud certain persons,' 
 and for entering into a conspiracy to extort money.' Nor can 
 jurisdiction in disbarment proceedings be ousted by the re- 
 spondent's removal from the state, especially after he has been 
 served with notice.^ In England an application to strike a solici- 
 tor's name from the rolls because of his disbarment in a colonial 
 court for a crime committed therein, was denied because of the 
 insufficiency of proof ; but it was intimated that disbarment would 
 be ordered if the commission of the crime had been established.^" 
 It has been held, however, that the commission of crime in an- 
 other jurisdiction, although it may be taken into consideration 
 in disbarment proceedings, is insufficient to cause the revocation 
 of an attorney's license. ^^ 
 
 § 772. In England and Canada. — In England a barrister 
 may be disbarred on his own petition, and this is some- 
 times done where he wishes to become a solicitor. Where the 
 barrister does not petition, disbarment may be inflicted by the 
 benchers for misconduct; and a bencher who is guilty of miscon- 
 duct may be disbenched, as well as disbarred.''^ A divisional court 
 of the High Court of Justice may order a solicitor's name to be 
 stricken from all the existing rolls of the former courts consoli- 
 dated into the High Court of Justice, and may also order his name 
 to be stricken from the register of solicitors of the Supreme Court 
 of Judicature.^* And a superior court at Westminster has power 
 
 SDormenon'a Case, 1 Mart. 0. S. [1898] 1 Q. B. (Eng.) 331, 77 L. T. 
 
 (La.) 129. N. S. 661, 67 L. J. Q. B. 245. 
 
 6 Smith V. State, 1 Yerg. (Tcnn.) "People v. Payson, 215 111. 476, 
 228 74 N. E. 383; People v. Propper, 220 
 
 7 In re Snyder, 24 Fed. 910. "l" ^''' ^^ ^^ ^- ^O^- See also People 
 
 ' V. Hahn, 197 111. 137, 64 N. E. 342. 
 
 8 People V. Maeauley, 230 111. 208, ^,^ Halsbury's Laws of England 
 82 N. E. 612, 120 Am. St. Rep. 287. gg^ ^„^ ^^^ ^j^„ ^^^^^^ ^ 2^ ^^^^^^ 
 
 9 In re Walkey, 26 Colo. 161, 56 as to the admission of barristers. 
 Pac. 576. 18 In re Martin, 24 W. E. (Eng.) 
 
 m Ex p. Incorporated Law Soe., 111. 
 
•118'2 StrSPENSION AND PISBAEMENT GENERALLY. [§ Y72 
 
 to strike the name of an attorney from the roll of a court of 
 common pleas of a county.^* 
 
 The law society of Upper Canada has, by statute, the power to 
 disbar attorneys for misconduct after due inquiry by a commit- 
 tee of their number or otherwise.^' The bar of Montreal is like- 
 wise empowered to disbar or suspend its members.^* 
 
 14 Ex p. Briggs, L. R. 8 C. . P. 18 Le Barreau De Montreal v. 
 (Eng.) 63. Honan, 8 Quebec Q. B. 26, ajj 
 
 15 Hands v. Upper Canada Law 30 Can. Sup. Ct. 1. 
 Soc, 16 Ont. 625. 
 
CHAPTEE XXX. 
 
 GROUNDS FOE, DISBARMENT. 
 
 Misconduct Generally. 
 
 773. Miaecnduet as Cause for Disbarment. 
 
 774. Nature of Misconduct. 
 
 775. What Constitutes Misconduct Generally. 
 
 776. Ignorance of the Law. 
 
 Misconduct toward Court. 
 
 777. Generally. 
 
 778. Deceiving the Court. 
 
 779. Attack upon Court's Integrity. 
 
 780. Threatening, Intimidating, or Coercing Judge. 
 
 781. Abuse of Court or Judge Thereof. 
 
 782. Criticising the Court. 
 
 783. Criticism after Termination of Cause. 
 
 784. Disavowal and Apology. 
 
 In Pleadings, Briefs, and Other Writings. 
 
 785. Statements in Pleadings. 
 
 786. Statements in Briefs. 
 
 787. Statements in Letters Written to Judge. 
 
 788. Libeling the Court. 
 
 789. Where Attorney is also Editor of Newspaper. 
 
 790. Fair Criticism as Distinguished from Libel. 
 
 Contempt of Court. 
 
 791. Generally. 
 
 792. Contempt as Ground for Disbarment. 
 
 Misconduct toward Attorneys. 
 
 793. Fair and Honorable Treatment Essential. 
 
 794. Improper Conduct. 
 
 1183 
 
1184 GROUNDS FOE DISBARMENT. 
 
 Misconduct toward Client. 
 
 § 795. Generally. 
 
 796. Fraud and Deceit. 
 
 797. False Representations. 
 
 798. Representing Conflicting Interests. 
 
 799. Acquiring Adverse Interests. 
 
 800. Undue Advantage. 
 
 801. Misconduct in Connection with Settlements. 
 
 802. Overcharging Client. 
 
 803. Changed View of the Law. 
 
 Misappropriation of Client's Funds. 
 
 804. General Rule. 
 
 805. Application of Rule. 
 
 806. Misappropriation by Partner. 
 
 807. In Professional Capacity. 
 
 805. Necessity of Demanding Payment. 
 
 809. Recovery of Judgment for Amount Due. 
 
 810. Defenses Generally. 
 
 811. Client's Indebtedness to Attorney. 
 
 812. Payment. 
 
 813. Payment after Institution of Proceedings. 
 
 814. Attachment of Funds. 
 
 815. Inexperience. 
 
 Perverting or Obstructing Justice. 
 
 816. Generally. 
 
 817. Abuse of Authority or Legal Process. 
 
 818. Interference with Witnesses. 
 
 819. Inducing Witnesses to Swear Falsely. 
 
 820. Imnroper Contract with Witnesses. 
 
 821. Contract with Detective Formerly Employed by Opponent. 
 
 822. Permitting Client to Present False Testimony. 
 
 823. Presenting False Testimony in Disbarment Proceedings. 
 
 824. Advocating False or Fictitious Claims. 
 
 825. Presenting Fictitious Case to Court. 
 
 826. Making False Statements to Court. 
 
 827. False Affidavits. 
 
 828. Falsifying and Abstracting Public Records and Papers. 
 
 829. Offering False or Fictitious Sureties. 
 
 830. Interference with Jurors. 
 
 831. Fraud. 
 
 832. Fraiul and Other Misconduct in Divorce Cases. 
 
 833. Conspiracy to Extort Money. 
 
 834. Organizing Sham Corporations for Unlawful Purposes. 
 
GEOUNDS FOE DISBAEMENI. 1185 
 
 ■§ 835. Compromising Criminal Cases. 
 
 836. Obstruction of Justice. 
 
 837. Obstruction by Corporation Claim Department under Supervision of 
 
 Attorney. 
 ■838. Preventing Extradition. 
 
 Fraud in Procuring Admission, and Unauthorized Acts and Practice. 
 
 S39. Fraud in Procuring Admission Generally. 
 
 840. Concealment of Prior Disbarment. 
 
 841. Unauthorized Acts. 
 
 842. Unauthorized Practice. 
 
 Conduct Contrary to Public Policy, 
 
 S43. Unlawful Contracts. 
 
 844. Solicitation of Business Generally. 
 
 S45. Solicitation by Advertisement. 
 
 Misconduct as Official, 
 
 846. Misconduct as Judge. 
 
 847. Misconduct as District Attorney. 
 fi48. Misconduct as Notary Public. 
 
 Misconduct outside Scope of Professional Relations, 
 
 849. Generally. 
 
 8ff0. Moral Delinquency. 
 
 851. Extent of Rule as to Moral Delinquency. 
 
 852. Dishonesty. 
 
 Criminal Misconduct, 
 
 853. Generally. 
 
 854. Nature of Crime Warranting Disbarment. 
 
 855. Blackmail. 
 
 856. Conviction of Crime as Ground for Disbarment. 
 
 857. Conviction Involving Moral Turpitude. 
 
 858. Conviction as Ipso Facto Disqualification or Disbarment 
 
 859. Conviction in Another Jurisdiction. 
 
 860. Necessity of Conviction. 
 
 861. Conviction Unnecessary. 
 
 862. Effect of Appeal. 
 
 863. Effect of Pardon. 
 
 864. Effect of Acquittal. 
 
 Attys. at L. Vol. II.— 75. 
 
1186 GEOUNDS FOE DISBARMENT. [§ 775 
 
 Misconduct Generally. 
 
 § 773. Misconduct as Cause for Disbarment. — As the 
 
 admission of one to practice as an attorney at law, whether con- 
 sidered as a judicial or as a legislative question,^ makes him an 
 officer of the court,* his professional conduct is at all times a sub- 
 ject over which the court may exercise summary jurisdiction 
 should it be required to do so.' Indeed, the exercise of such 
 jurisdiction becomes a matter of necessity for the protection of 
 the public, the court, and the members of the bar.* Therefore, 
 it is universally conceded that an attorney at law may be removed 
 from office, and his license revoked, for such misconduct as un- 
 fits him for the proper performance of his duties.^ It has been 
 aptly said that too much is staked upon the honesty and good 
 conduct of lawyers for courts to wink at flagrant misconduct. 
 They are trusted by the community with the care of life, 
 liberty and property, with no other security than personal honor 
 and integrity.* Since it is presumed that upon the admission 
 of an attorney to the bar, the court inquired into his character, 
 charges of misconduct in transactions occurring before an attorney 
 was admitted tO' the bar should not be considered in proceedings 
 for his disbarment.'' 
 
 ISee supra, §§ 28, 29. See also 568; Burrage v. Bristol County, 21ft 
 Ex p. Garland, 4 Wall. 333, 18 U. S. Mass. 299, 96 N. E. 719. 
 (L. ed.) 366; People v. Goodrich, 79 Minnesota. — State Board of Exam- 
 Ill. 148 ; People f. Amos, 246 111. 299, iners v. Reynolds, 98 Minn. 44, 107 
 92 N. E. 857, 138 Am. St. Rep. 239. N. W. 144. 
 
 2 See supra, § 13. Nebraska. — In re Newby, 76 Neb. 
 
 sSee supra,. %% 756-761. See also 482, 107 N. W. 850. 
 
 In re Durant, 80 Conn. 140, 10 Ann. New York. — In re Flower, 138 App. 
 
 Cas. 539, 67 Atl. 497. Div. 102, 122 N. Y. S. 886. 
 
 4 See supra, § 760. See also In re Pennsylvania. — In re Gates, 1 Pa. 
 
 Stern, 137 App. Div. 909, 121 N. Y. Co. Ct. 236. 
 
 S. 948. West Virginia. — State v. Mc- 
 
 6 CoJorado.-T^¥eop\e v. Essington, Claugherty, 33 W. Va. 250, 10 S. E. 
 
 32 Colo. 168, 75 Pac. 394. 407. 
 
 Kansas. — In re Smith, 73 Kan. 6 Matter of Lyons, 162 Mo. App. 
 
 743, 85 Pac. 584. 688, 145 S. W. 844; In re Henderson, 
 
 Maine. — Sanborn v. Kimball. 64 88 Tenn. 531, 13 S. W. 413. 
 
 Me. 140. Tin re Evans, 94 S. C. 414, 78 S. 
 
 Massachusetts. — Boston Bar Assoc. E. 227. 
 V. Greenhood, 168 Mass. 169, 46 N. E, 
 
§§ 774, 775] GROUNDS foe disbarment. 1187 
 
 § 774. Nature of Misconduct. — The word "misconduct" is 
 broad enough to incliide every cause for which an attorney may 
 be suspended or disbarred. Therefore, it may be stated generally 
 that suspension or disbarment may be ordered for any violation 
 of the oath taken by an attorney on his admission to the bar, or 
 of his duties as a member thereof.' Indeed, any conduct viola- 
 tive of the ordinary standards of professional obligations and 
 honor is unprofessional and disreputable ; * so that, the determi- 
 nation of what constitutes misconduct suiEcient to justify sus- 
 pension or disbarment is frequently, if not invariably, a question 
 to be decided by the court in the exercise of a sound judicial dis- 
 cretion.'" The nearest approach to a precise definition which will 
 cover the entire subject may be stated thus : an attorney is guilty 
 of misconduct whenever he so acts as to be unworthy of the trust 
 and confidence involved in his official oath, and is found to be 
 wanting in that honesty and integrity which must characterize 
 members of the bar in the performance of their professional 
 duties. '^ The misconduct, however, must be wilful,'^ but it need 
 not be corrupt," or of a criminal nature." 
 
 § 775. What Constitutes Misconduct Generally. — In; 
 
 many jurisdictions certain grounds for disbarment are provided 
 for by statute, and of course these will be sufficient in them- 
 selves ; '* but, as stated heretofore, the statutory grounds, except- 
 
 8 Strout V. Proctor, 71 Me. 288 ; 12 In re Boone, 83 Fed. 944 ; Ex p. 
 State Bank v. Stryker, 1 W)ieeler Walls, 64 Ind. 461. Compare In re 
 Crim. (N. Y.) 330; State i. Mar- Hobbs, 75 N. H. 28,'), 73 Atl. 303, 
 tin, 45 Wash. 76, 87 Pac. 1054. wherein it was said that to eonsti- 
 
 9 Garfield r. U. S., 32 App. Oas, tute cause for disbarment, intentional 
 (D. C.) 109. wrongdoing is not necessary. 
 
 10 In re Thatcher, 190 Fed. 969. 18 Ex p. Walls, 64 Ind. 461. 
 
 "In re Wall, 13 Fed. 814; In re 14 Underwood v. Com., 105 S. W. 
 
 Boone, 83 Fed. 944; State v. Har- 151, 32 Ky. L. Eep. 32. 
 
 ber, 129 Mo. 271, 31 S. W. 889; In « The local laws must be consulted., 
 
 re Bauder, 128 App. Div. 346, 112 See also Boston Bar Assoc, v. Casey,, 
 
 N. Y. S. 761; In re Spencer, 137 App. 213 Mass. 549, 100 N. E. 658; N. Y. 
 
 Div. 330, 122 N. Y. S. 190; In re Judiciary Law, §§ 88, 477; Laws of 
 
 Harrington, 146 App. Div. 219. 130 New York (1912) c. 253; In re Hart, 
 
 N. Y. S. 920, denying rehearing 140 131 App. Div. 661, 116 N. Y. S. 193; 
 
 App. Div. 939, 125 N. Y. S. 1123: Ex State d. Robinson, 26 Tex. 367; Morri- 
 
 p. Eastham, 46 Ore. 475, 80 Pac. 1057. son v. Snow, 26 Utah 247, 72 Pac. 924. 
 
1188 
 
 GKOUNDS FOE DISBAEMENT. 
 
 [§ 776 
 
 ing in a few jurisdictions, do not prevent the courts from sus- 
 pending or disbarring attorneys on common-law grounds.*® The 
 general subdivisions of misconduct which will be sufficient to 
 cause a suspension or disbarment, and which are considered 
 hereinafter, are misconduct toward the court " or toward other 
 attorneys ; *' misconduct toward the client,*^ such, for instance, 
 as the appropriation of the client's funds,^" or the perpetrating, or 
 attempting to perpetrate, a fraud upon him ; * and misconduct 
 as an official.* So, also, disbarment or suspension may be war- 
 ranted by the filing of scandalous pleadings ^ or briefs,* or by 
 fraud in connection with the respondent's admission to the bar,* 
 or by perverting justice,* or by the commission of crime,'' or 
 conduct in the nature thereof,* or by the suppression or desecration 
 of public records or papers.* So, in some instances, suspension 
 or disbarment may be predicated on the fact that an attorney has 
 entered into certain unlawful agreements,*" or has bought de- 
 mands for suit,** or has solicited business,*^ or has become a moral 
 delinquent.** 
 
 § 776. Ignorance of the Law. — It has been held that 
 ignorance of the law is not a sufficient ground for the disbarment 
 of an attorney.** In that case, however, it appears that, by statute, 
 every citizen of good moral character was entitled, on application, 
 to be admitted to practice as an attorney. The statute did not 
 require any knowledge of the law or the practice thereof, nor 
 were there any educational requisites whatever, and the court 
 said : "It is with a full conviction of the importance of preserving 
 the standard of professional qualifications, that we have been, 
 nevertheless, constrained to come to the result, that ignorance of 
 
 16 See supra, §§ 758, 759. 
 
 17 See infra, §§ 777-784. 
 "See infra, §§ 793, 794. 
 
 19 See infra, §§ 795-803. 
 
 20 See infra, §§ 804-815. 
 1 See infra, §§ 796, 797. 
 '2 See infra, §§ 846-848. 
 :3 See infra, § 785. 
 
 ■4 See infra, § 786. 
 
 s See infra, §§ 739.. 740. 
 
 8 See infra, §§ 816-838. 
 'See infra, §§ 853-864. 
 
 8 See infra, § 853. 
 
 9 See infra, § 828. 
 
 10 See infra, §§ 820, 821, 843. 
 
 11 See infra, § 843. 
 
 12 See infra, §§ 844, 845. 
 
 13 See in,fra, §§ 850-851. 
 
 14 In re Bryant, 24 N. H. 149. 
 
§ 777] QEOUNDS FOE DISBARMENT, 1189 
 
 the law in an attorney does not authorize the court to suspend or 
 remove him from office, as a contrary doctrine would render it 
 necessary that an attorney should possess some knowledge of the 
 law — a condition which the statute does not require." But even 
 where knowledge of the law is required, as it is now in every 
 state excepting Indiana, there seems to be no instance of an. 
 attorney having been removed because of his ignorance thereof, 
 unless such ignorance has been made manifest by some well- 
 defined misconduct which, in itself, is a ground for disbarment; 
 in that case, of course, it may be assumed that ignorance will be 
 no defense. In this connection it seems worth while to quote from 
 a recent number of the Green Bag, whose editor said : "We heartily 
 approve of the suggestion that there should be some means of re- 
 examining the qualifi.cations of a practitioner at the bar, and of 
 suspending from practice those who are incompetent, as well as 
 those who are dishonest or corrupt. In fact, the evil of incom- 
 petence is at the present time more serious than that of dishonesty, 
 because no available remedy for it exists." ^° It is only necessary 
 to add to these remarks that the power of removing law examiners 
 should be exercised as occasion may require ; and if they are found 
 to be negligent or incompetent, the court may instruct them in 
 the proper performance of their duties, as was recently done by 
 the court of appeals of 'New York.** Ignorance of the law as 
 excuse or palliation of misconduct is elsewhere discussed." 
 
 Misconduct toward Court. 
 
 § 777. Generally. — It is the duty of an attorney not only 
 to be considerate and respectful in his communications with the 
 court, but also, at all times, to refrain from any unfairness in his 
 professional communications and dealings with the judges there- 
 of,*' and his failure to observe this duty may, of itself, warrant 
 
 15 Green Bag for March, 1912, Vol. 16 See Vol. V. Bencli and Bar N. S. 
 
 XXIV., p. 135, approving certain re- C^^J' 1913) 40. 
 
 marks made by Chief Justice Winch " ^<=* *~^''»' § ^^^■ 
 
 , ^ ,^ ^^,. 18 Bradley v. Fisher, 7 D. C. 32, af- 
 
 at an annual banquet of the Ohio pro- ^^^^^ ^g ^^jj ggg^ ^^ ^ g ^^^ 
 
 bate judges at Cleveland. ed.) 646; Wernimont v. State, 101 
 
1190 GEO0ITDS FOE- DISBAEMENT. [§ 778 
 
 his disbarment.^' Thus, an attorney may be disbarred where 
 he studiously and systematically attempts to bring the courts into 
 public contempt.*" And it has been said, that where an attorney 
 indulges in invective or in scandalous innuendo, which tends to 
 degrade the court or impair its usefulness, it is the duty of such 
 court to take such steps as may be necessary to preserve its dignity 
 and good name, and, if necessary to that end, to remove the of- 
 fender from practicing before it.* So too one who exercises the 
 privileges granted to him as an attorney at law is under an obli- 
 gation to maintain the respect justly due to the court of which he 
 is an officer, and to furnish information of conduct tending 10 
 discredit the court or to create suspicion as to the integrity of 
 its members ; and a failure to do so, without justification or excuse, 
 is cause for disbarment.* It is a mistake to suppose that the 
 practice of the law is a game of hazard, to be won by shift, subter- 
 fuge, deception and dissembling. On the contrary, the law re- 
 quires of those who practice in its courts the strictest observance 
 of truth, integrity, justice and fair dealing in the conduct of all 
 legal proceedings, in and out of court. Indeed, there could scarce- 
 ly be a greater reproach to a lawyer, than to have it truthfully 
 said that he had gained his case by trick and circumvention.' 
 
 § 778. Deceiving the Court. — An attorney who deceives 
 the court, or perpetrates, or attempts to perpetrate, a fraud upon 
 it, may be disbarred ; * and it has been so held where an attorney 
 
 Ark. 210, Ann. Cas. 1913D 1156, 142 20 Bradley v. Fisher, 7 D. C. 32, af- 
 
 S., W. 194; In re Pryor, 18 Kan. 72, firmed 13 Wall. 335, 20 U. S. (L. ed.) 
 
 26 Am. Rep. 747; Farlin v. Sook, 30 646; In re Woolley, 11 Bush (Ky.) 
 
 Kan. 401, 1 Pac. 123, 46 Am. Rep. 95. 
 
 100; Baur r. Betz, 1 How. Pr. N. S. 1 Pittsburgh, C, C. & St. L. E. Co. 
 
 (N. Y.) 344, 7 Civ. Proc 233; In „ ^^^^.^ ^ p ^^^^^.^^ ^^^ 
 
 re VosB, 11 ND. 540 90 N. W. 15; ^ ^^^ ^^ ^. ^ ^ ^^^ 
 
 Caples v. State, 3 Okla. Crim. 72, „„ , ^ 
 
 104 Pao. 493; Simmons .. State. 4 '1'°^'^ "" ^'-^SK 224 111. 541, 79 
 
 Okla. Crim. 490, 114 Pac. 752, deny- ^- ^- '^^^• 
 
 ing rehearing 4 Okla. Crim. 489, 112 * Brooks v. Brooks, 90 N. C. 142. 
 
 Pac. 35. iWernimont v. State, 101 Ark. 210, 
 
 19 Cobb V. U. S. 172 Fed. 641, 96 Ann. Cas. 19130 1156, 142 S. W. 194; 
 
 C: C. A. 477; In re Woolley, 11 Bush In re Robinson, 140 App. Div. 329, 
 
 (Ky.) 95. 125 N. Y. S. 193; In re Freerks, 11 
 
§ 778] OKOUNDS FOB DISBARMENT. 1191 
 
 procured an order for alimony bj fraud and misrepresentation,* 
 and also where an attorney filed a bill for divorce, and obtained a 
 decree, without disclosing to the court that the same bill had been 
 previously dismissed for want of equity by another judge upon 
 substantially the same evidence.^ An attorney may also be dis- 
 barred where he procures the entry of a default judgment by de- 
 ceiving the court with respect to a motion made by the defendant, 
 under a special appearance, to quash the service of the summons.' 
 So, also, where an attorney went on with the trial of a case, the 
 settlement of which he had previously aided in perfecting, and 
 failed to inform the court of such settlement, his conduct was 
 said to be inexcusable, and, for that and other causes, he was dis- 
 barred.^ And where an attorney was employed by the stockhold- 
 ers of a turnpike company to sell its road to a city for a certain 
 sum, and was to be paid all he received above such sum, it was 
 held that he was guilty of deceiving the court by failing to dis- 
 close the price placed on the road by his clients.' Disbarment 
 may also be ordered for misconduct in deceiving the court as to 
 the good moral character of an applicant for admission to the 
 bar.^" So, the conduct of a prosecuting attorney in deceiving 
 the court for the purpose of obtaining a certificate for his salary, 
 
 N. D. 120, 90 N. W. 265 ; In re Hen- ested, and the failure to do so, if 
 
 derson, 88 Tenn. 531, 13 S. W. 413. with the intention of deceiving the 
 
 Duty to Notify Court of Clerical court, will be considered, in connec- 
 Krror. — Under a statute which pro- tion with other grounds, in a, pro- 
 vided that an attorney shall employ ceeding for his disbarment. Matter 
 only such means in maintaining an of V., 10 App. Div. 491, 42 N. Y. S. 
 action as are consistent with truth, 268. 
 
 it has been held to be the duty of an 5 People v. Barrios, 237 111. 527, 
 
 attorney who had based an argument 86 N. E. 1075. 
 
 on a clerical error in the record, to 6 People v. Case, 241 111. 279, 89 
 
 admit such error as soon as he dis- N. E. 638. 
 
 <:overed it. Grand Grove U. A. Q. D. 7 People v. Hooper, 218 111. 313, 75 
 
 V. Garibaldi Grove No. 71, 130 Gal. N. E. 896. 
 
 116, 02 Pac. 486, 80 Am. St. Eep. 80. « State c. Martin, 45 Wash. 76, 87 
 
 Duty of Calling Court's Attention Pac. 1054. 
 
 to licported Case. — It has been said 9 In re Kensington & Oxford Turn- 
 
 •that it is the duty of an attorney pike Road Co., 12 Phila. (Pa.) 61], 
 
 -to direct the court's attention to a 35 Leg. Int. 152. 
 
 reported case which may control a m In re Deringer, 12 Phila. (Pa.) 
 
 <iase wherein the attorney is inter- 217, 34 Leg. Int. 248, 4 W. N. C. 200. 
 
1192 GROUNDS FOE DISBAEMENT. [§ TTO" 
 
 has been held to be sufficient to justify his disbarment.^^ So 
 where an attorney, by a course of fraudulent conduct toward the 
 court, postponed the payment of a just claim to which there was 
 no defense, and thereby enabled the debtors to convey away their 
 assets, it was held that he was guilty of such unprofessional con- 
 duct as would warrant his suspension from practice.^* An at- 
 torney may also be disbarred for obtaining a continuance by de- 
 ceiving or misleading the court. ^' But an attorney who applied 
 for a continuance because of the alleged absence of material wit- 
 nesses, when in fact such witnesses were present, may exonerate 
 himself by showing that he did not know of their presence, and 
 that his application for a continuance was presented in good 
 faith." 
 
 Deceiving the court by the presentation of false affidavits or 
 other papers, or by countenancing perjury and suborning wit- 
 nesses, will be considered in connection with the perversion of 
 justice generally, as a cause for disbarment.^* 
 
 § 779. Attack upon Court's Integrity. — So, a member 
 of the bar who attacks .the integrity of the court, or a judge there- 
 of, may be disbarred.^* Thus, an attorney who repeatedly ac- 
 cused the judge, during the progress of a trial for divorce, of 
 being a member of a combination which induced the plaintiff to 
 institute the divorce proceeding, may be disbarred, especially 
 where he offered no evidence in support of these accusations.*'' So, 
 an attorney may be disbarred where he accuses a judge of falsify- 
 ing the records of his court,*' or of having acted oppressively or 
 corruptly.*' 
 
 11 In re Jones, 70 Vt. 71, 39 Atl. State v. Root, 5 N. D. 487, 67 N. W. 
 ]087. 590, 57 Am. St. Rep. 568; Appeal of 
 
 12 In re Goodman, 135 App. Div. Scouten, 186 Pa. St. 270, 42 W. N. C. 
 594, 120 N. Y. S. 801, affirmed 199 N. 227, 40 Atl. 481. 
 
 Y. 143, 92 N. E. 211. "State v. Maxwell, 19 Fla. 31. 
 
 15 Baker v. State, 90 Ga. 153, 15 "People v. Brown, 17 Colo. 431, 30' 
 S. E. 788. Pac. 338. 
 
 14 In re Champion, 24 Okla. 154, 19 People v. Brown, 17 Colo. 431, 
 
 103 Pac. 600. 30 Pac. 338; In re Brown, 3 Wyo. 
 
 16 See infra, § 816 et seq. 121, 4 Pac. 1085. 
 
 IBBeene v. State, 22 Ark. 149; Compare Neel v. State, 9 Ark. 259, 
 
§ 780] GEOUIfDS FOE DISBAEMENT. 1193 
 
 Consideration is given hereinafter to accusations and at- 
 tacks made in pleadings,^" briefs,* letters,' and newspapers.' 
 
 § 780. Threatening, Intimidating, or Coercing Judge. — 
 
 Any attempt on the part of an attorney to influence the action of a 
 court by threats, coercion, or intimidation, will justify his dis- 
 barment.* Thus, where an attorney, by letter, charged a judge 
 with an endeavor to conceal facts from the appellate court, and 
 threatened, in the event of an adverse decision in another case, 
 to lay the whole proceedings before the appellate court and the peo- 
 ple, he is guilty of unprofessional conduct.^ So, an attorney may 
 be disbarred where he advises his clients to attempt to influence 
 the action of the court, in a pending suit, by newspaper publica- 
 tions which were calculated to intimidate the judge.® To permit 
 conduct of this character to go unpunished, it has been said, would 
 make the bar a fortress for the unprincipled from which they 
 might prey with impunity upon the public without, and attack 
 the court from within.'' Of course, errors resulting from thought- 
 lessness which counsel intensely interested, and perhaps lacking 
 a very nice sense of professional propriety, might make, without 
 being guilty of any grave offense, or intention to do wrong, will 
 be overlooked,^ or passed by with such censure as they may de- 
 mand.^ "It is the motive that makes an invasion of the judge's 
 rights a breach of professional fidelity, from which he is to be 
 
 50 Am. Dec. 209, wherein it was said A threat of personal chastisement, 
 
 that the license of an attorney sliould made by an attorney to a .judge out 
 
 not be revolced for fastening a paper of court for his conduct during the 
 
 at a judge's office door, and wherein trial of a cause pending, is good 
 
 the judge was accused of being a ground for striking the attorney from 
 
 base and corrupt man. the rolls. Bradley v. Fisher, 13 Wall. 
 
 20 See infra, § 785. 335, 20 U. S. (L. ed.) 646. 
 
 1 See infra, § 786. 6 In re Griffin, 1 N. Y. S. 7. 
 
 2 See infra, § 787. 6 Ex p. Cole, 1 McCrary 405, 6 Fed. 
 
 3 See infra, §§ 788-790. Cas. No. 2,973. 
 
 4 Ex p. Coe, 1 McCrary 405, 6 Fed. 7 In re Smith, 179 Pa. St. 14, 36 
 Cas. No. 2,973; Smith's Appeal, 179 Atl. 134. 
 
 Pa. St. 14, 36 Atl. 134; In re Robin- Sin re Smith, 179 Pa. St. 14, 36 
 
 son, 48 Wash. 153, 15 Ann. Cas. 415, Atl. 134. 
 
 92 Pac. 929, 15 L.Il.A.(N.S.) 525. 9 In re Griffin, 1 N. Y. S. 7. 
 
1194 
 
 GEOUNDS FOR DISBAEMENT. 
 
 [§ 781 
 
 protected for the sake of the public and the suitors of his court, 
 not for his own." ^^ 
 
 § 781. Abuse of Court or Judge Thereof. — An attorney 
 who so far forgets his duties as an officer of the court, as to be 
 guilty of using offensive language in characterizing the judges 
 thereof, collectively or individually, should be disbarred.*^ It 
 is immaterial whether such language was used in or out of court, 
 or whether it was written *^ or spoken.*' Thus, it has been held 
 that the authority of an attorney who openly, notoriously, and pub- 
 licly insults the court, may be revoked, especially where he re- 
 fuses to atone therefor ; ** and this is true even though the matter 
 in connection with which the court was so abused has been de- 
 termined.** So, the court may disbar an attorney who maligns 
 it." 
 
 10 Per Gibson, J., in Austin's Case, 
 5 Rawle (Pa.) ]91, 28 Am. Dec. 657. 
 
 llBeene v. State, 22 Ark. M9; 
 People V. Green, 7 Colo. 237, 3 Pac. 
 «5, 49 Am. Rep. 351; In re WooUey, 
 11 Bush (Ky.) 95; In re Breen, 30 
 Nev. 164, 93 Pac. 997, 17 L.R.A. 
 (N.S.) 572; In re Brown, 3 Wyo. 121, 
 4 Pac. 1085. 
 
 "Appellate tribunals are created for 
 the sole purpose of correcting judicial 
 errors, and the defeated attorney, if 
 aggrieved, should seek redress by in- 
 voking their aid. This is lawyer-like 
 and proper. If, however, the wrath 
 of the attorney is too exuberant to 
 he retained until the appeal is 
 heard, he may go to the nearest tav- 
 ern and purge himself of it in a man- 
 ner suited to his temper and the sur- 
 roundings. Whether such an exhibi- 
 tion is in good taste, or accomplishes 
 any practical purpose, must, in the 
 nature of things, be left to the moral 
 sense and standard of ethics of the 
 particular individual. He is not like- 
 ly to be called upon in court to jus- 
 tify such a mode of ventilating fan- 
 cied judicial injustice, and this cir- 
 
 cumstance may give license to such 
 conduct. But the attorney must not 
 pollute the atmosphere of the court 
 with billingsgate, or give vent to 
 his wrath within the sacred halls of 
 justice." In re Griffin, 1 N. Y. S. 7. 
 
 12 See infra, §§ 785-790. See also 
 In re Woolley, 11 Bush (Ky.) 95. 
 
 Compare Jackson v. State, 21 Tex. 
 668, wherein it was said that scur- 
 rilous epithets applied to a judge 
 in vacation time, by an attorney, do 
 not constitute a contempt, within 
 the meaning of a statute authorizing 
 disbarment for contempts involving 
 fraudulent or dishonorable conduct or 
 malpractice. 
 
 13 State Board of Law Examiners 
 r. Hart, 104 Minn. 88, 15 Ann. Cas. 
 197, 116 N. W. 212, 17 L.E.A.(N.S.) 
 585. 
 
 14 In re Woolley, 11 Bush (Ky.) 
 95. 
 
 15 State Board of Law Examiners 
 V. Hart, 104 Minn. 88, 15 Ann. Cas. 
 197, 116 N. W. 212, 17 L.R.A.(N.S.) 
 585. 
 
 16 In re Breen, 30 Nev. 164, 93 Pae. 
 997,17 L.R.A.(N.S.) 572. 
 
§ 782] 
 
 QEOUNDS FOE DISBAEMENT. 
 
 1195 
 
 § 782. Criticising the Court. — An attorney has a right to 
 comment upon, and to criticise, the rulings of a court,' or of any 
 particular judge thereof, providing, of course, that he does so in 
 a fair and becoming manner." So, it has been said that" an at- 
 torney is not responsible for scrutinizing the conduct of a judge 
 in any way that would not render him liable as a citizen ; '' and 
 that he may also discuss with his client the fitness of a judge 
 before whom his case may come for trial, and the things which 
 may influence him, and advise the client to adopt any means to 
 secure a favorable determination thereof short of corruptly at- 
 tempting to pervert justice or influence the judge by intimidation 
 or otherwise, without being guilty of an act subjecting, him to 
 disbarment.'® It is indispensable, however, that a criticism of 
 the court shall be in good faith and within the limits of pro- 
 priety,'" and the right is transcended when a judicial officer is 
 subjected to scandalous and libelous charges and indignities.* 
 Criticism cannot be carried to such an extent as to undermine 
 
 "Cobb V. V. S., 172 Fed. 64], 96 
 C. C. A. 477; State Board of Law 
 Examiners v. Hart, 104 Minn. 88, 15 
 Ann. Cas. 197, 116 N. W. 212, 17 
 L.R.A.{N.S.) 585. 
 
 18 In re Austin, 5 Rawle ( Pa. ) 
 191, 28 Am. Dec. 657. 
 
 19 Ex p. Cole, 1 McCrary 405, 6 
 Fed. Cas. No. 2,973. 
 
 20 Arkansas. — Beene v. State, 22 
 Ark. 149. 
 
 California. — In re Collins, 147 Cal. 
 8, 81 Pac. 220. 
 
 Colorado. — People v. Green, 7 Colo. 
 247, 3 Pac. 374, 9 Colo. 506, 13 Pac. 
 514. 
 
 District of Columbia. — In re Ad- 
 riaans, 17 App. Cas. 39. 
 
 Kentuclcy. — In re Woolley, 11 Bush 
 95. 
 
 IVeic York. — ^Matter of Rockmore, 
 127 App. Div. 499, 111 N. Y. S. 879. 
 
 Ohio.— In re Thatcher, 80 Ohio St. 
 492, 89 N. E. 39. 
 
 Pennsylvania. — In re Austin. 5 
 Rawle 205, 28 Am. Dec. 657. 
 
 iCobb V. U. S., 172 Fed. 641. 96 
 C. C. A. 477. 
 
 Language to the effect that the 
 court's ruling is directly contrary to 
 every principle of law is insulting and 
 disrespectful. In re Pryor, 18 Kan. 
 72, 26 Am. Rep. 747. 
 
 So, the language of an attorney, 
 while acting in the capacity of a 
 district judge, but not used in any 
 judicial proceeding pending before 
 him, to the effect that the opinion of 
 the appellate court was neither fair 
 to the prosecuting attorney nor to 
 the district court, and whether or 
 not it was made for the purpose of 
 bolstering up a decision which was 
 neither founded on law nor supported 
 by fact, and was a palpable reversal 
 of a case which for forty years had 
 been the accepted law in the state, 
 it was "highly reprehensible for its 
 author or authors to have made it 
 
1196 
 
 GEOUNDS rOR DISBARMENT. 
 
 [§ 782 
 
 public confidence in the due administration of justice.^ That 
 improper criticism is made by way of the pleadings of the par- 
 ties, or the briefs of their counsel, does not render it any the 
 less objectionable ; * nor is it material whether it was made with- 
 in or without the courtroom, or by unofficial communications 
 addressed to the judge.* The incorporation in pleadings, briefs. 
 
 . . . reprehensible if the court 
 knew what it was doing, pitiful if it 
 did not," was held not to be within 
 the province of legitimate criticism, 
 but was an unwarranted attack on 
 the court, for which the attorney 
 might be disbarred. In re Breen, 30 
 Nev. 164, 93 Pac. 997, 17 L.E.A. 
 (N.S.) 572. 
 
 2 United States. — U. S. v. Green, 85 
 Fed. 857. 
 
 Colorado. — People v. Brown, 17 
 Colo. 431, 30 Pac. 338. 
 
 Nevada. — In re Breen, 30 Nev. 164, 
 93 Pac. 997, 17 L.R.A.(N.S.) 572. 
 
 New York. — Matter of Rockmore, 
 127 App. Div. 499, 111 N. Y. S. 879. 
 
 Ohio. — In re Thatcher, 80 Ohio St. 
 492, 89 N. E. 39. 
 
 Oklahoma. — State Bar Commission 
 r. Sullivan, 35 Okla. 745, 131 Pac. 
 703. 
 
 Wyoming. — In re Brown, 3 Wyo. 
 121, 4 Pac. 1085. 
 
 8 United States. — In re Hastings, 4 
 Amer. L. Rev. 173, 11 Fed. Cas. No. 
 6,199. 
 
 California. — See In re Philbrook, 
 105 Cal. 471, 38 Pac. 511, 884, 45 Am. 
 St. Rep. 59. 
 
 Colorado. — People v. Green, 9 Colo. 
 506, 13 Pac. 514; People v. Brown, 
 17 Colo. 431, 30 Pac. 338. 
 
 District of Columbia. — In re Ad- 
 riaans, 17 App. Cas. 39. 
 
 Florida. — State v. Maxwell, 19 Fla. 
 31. 
 
 Indiana. — See Ex p. Smith, 28 Ind. 
 47. 
 
 Eentitcky. — In re WooUey, 11 Bush 
 95. 
 
 Louisiana. — De Armas's Case, 10 
 Mart. 123. 
 
 Michigan. — In re Mains, 121 Mich. 
 603, 80 N. W. 714. 
 
 Nevada. — In re Breen, 30 Nev. 164, 
 93 Pac. 997, 17 L.R.A.(N.S.) 572. 
 
 New York. — In re Murray, 58 Hun 
 604 mem., 11 N. Y. S. 336; Matter of 
 Rockmore, 327 App. Div. 499, 111 
 N. Y. S. 879. 
 
 Virginia. — See Ex p. Fisher, S 
 Leigh 619. 
 
 Washington. — In re Lambuth, 18 
 Wash. 478, 51 Pac. 1071; In re Rob- 
 inson, 48 Wash. 153, 15 Ann. Cas. 
 415, 92 Pac. 929, 15 L.E.A. (N.S.) 
 525. 
 
 And see infra, §§ 785-786. 
 
 * England. — See Matter of Ludlow 
 Charities, 2 Myl. & C. 316. 
 
 Alabama. — See Johnson v. State. 
 152 Ala. 93, 44 So. 671. 
 
 Arkansas. — Beene v. State, 22 Ark. 
 149. 
 
 California. — ^In re Collins, 147 Cal. 
 8, 81 Pac. 220. 
 
 New York. — In re Wilkes, 3 N. Y. 
 S. 753. 
 
 North Dakota. — See State v. Root, 
 5 N. D. 487, 67 N. W. 590, 57 Am. St. 
 Rep. 568. 
 
 Ohio. — In re Thatcher, 80 Ohio St. 
 492, 89 N. E. 39. 
 
 Pennsylvania. — Smith's Appeal, 
 
§§ 783, 784] GEOUNDs foe disbarment. 1197 
 
 and other writings, of abusive language or undue criticism, is 
 specifically considered in the subdivision following.* 
 
 § 783. Criticism After Termination of Cause. — As the 
 purpose of the rule against improper criticism of judges is pri- 
 marily to prevent the impairment of the administration of jus- 
 tice, it is applied with less strictness where the cause, in connec- 
 tion with which the criticism was made, has been determined.® 
 And in some jurisdictions criticism of this character is not suffi- 
 cient to warrant disbarment,' unless it appears to be so base and 
 vile as to establish clearly the attorney's unfitness to remain a 
 member of an honorable profession.' 
 
 § 784. Disavowal and Apology. — An attorney who has 
 been guilty of misconduct toward the court can, in most instances, 
 avert the consequences of his wrong by disavowing any intentional 
 disrespect, and apologizing to the court; and this is the proper 
 course to pursue by one who allows the heat of an argument to 
 set aside his discretion.' But where the language used is un- 
 ambiguous, and of such a character as to bring the court into con- 
 tempt, a disavowal of any disrespectful meaning will not purge 
 the words used of their ordinary signification, for every one is 
 presumed to intend the natural consequences of his acts.*" The 
 
 179 Pa. St. 14, 36 Atl. 134; Scouten's 8 state Board of Law Examiners v. 
 
 Appeal, 186 Pa. St. 270, 40 Atl. 481. Hart, 104 Minn. 88, 15 Ann. Cas. 197, 
 
 West Virginia. — Stsite v. Me- 116 N. W. 212, 17 L.R.A.(N.S.) .585. 
 
 Claugherty, 33 W. Va. 250, 10 S. E. 9 In re Manheim, 113 App. Div. 
 
 407. 136, 99 N. Y. S. 87; In re Griffin, 1 
 
 Wyoming. — In re Brown, 3 Wyo. N. Y. S. 7 ; Ex p. Biggs, .64 N. C. 214. 
 
 121, 4 Pae. 1085. 10 Colorado.— People v. Green, 7 
 
 6 See infra, §§ 785-790. Colo. 237, 3 Pae. 65, 49 Am. Eep. 
 
 6 In re Pryor, 18 Kan. 72, 26 Am. 351. 
 
 Eep. 747. See also In re Thompson, Kentuclcy. — In re WooUey, 11 Bush 
 
 46 Kan. 254, 26 Pae. 674. 111. 
 
 1 State Board of Law Examiners Nevada. — In re Breen, 30 Nev. 164, 
 
 V. Hart, 104 Minn. 88, 15 Ann. Cas. 93 Pae. 997, 17 L.R.A.(N.S.) 572. 
 
 197, 116 N. W. 212, 17 L.R.A.(N.S.) Pennsylvania.— Smith's Appeal, 
 
 585; In re Egan, 24 S. D. 301, 123 179 Pa. St. 14, 36 Atl. 134. 
 
 N. W. 478. Compare In re Breen, West Virginia. — State v. Mc- 
 
 30 Nev. 164, 93 Pae. 997, 17 L.R.A. Claugherty, 33 W. Va. 250, 10 S. E. 
 
 (N.S.) 572. 407. 
 
1198 
 
 GROUNDS FOE DISBARMENT. 
 
 [§ 785 
 
 disavowal, however, will be considered in mitigation of punish- 
 ment ; ^' and if the court is satisfied that no intentional disrespect 
 was meant, the offender will not be disbarred,** but he may escape 
 with a reprimand, *' or a temporary suspension.** On the other 
 hand, the fact that an attorney refuses to apologize when his error 
 is brought to his attention, will also be taken into consideration 
 and weighed against him." 
 
 In Pleadings, Briefs, and Other Writings. 
 
 § 785. Statements in Pleadings. — A lawyer cannot use the 
 pleadings in a cause, or papers in the nature of pleadings, as a 
 means for abusing the court; and if he does so, he may be dis- 
 barred.** Thus, disbarment may follow from the making of 
 charges, in a pleading or other paper in the nature thereof, which 
 attacks the integrity of the court," or which charges the court or 
 any judge thereof with being corrupt,*' as, for instance, where a 
 trial judge is charged with having maliciously promoted litiga- 
 tion in order that he might receive the fruits thereof,*^ or with 
 having taken a bribe,'"' or with usurpation of office,* or with hav- 
 
 See also In re Egan, 24 S. D. 301, 
 123 N. W. 478, in which McCoy, J., 
 said of such a disavowal: "The only 
 legitimate inference is that his mem- 
 ory is sadly deficient or his concep- 
 tion of the truth very limited." 
 
 UEx p. Cole, 1 McCrary 405, 6 
 Fed. Cas. No. 2,973; People v. Green, 
 9 Colo. 506, 13 Pac. 514; In re Breen, 
 30 Nev. 164, 93 Pac. 997, 17 L.E,.A. 
 (N.S.) 572; In re Lambuth, 18 Wash. 
 478, 51 Pac. 1071; In re Robinson, 
 48 Wash. 153, 15 Ann. Cas. 415, 92 
 Pac. 929, 15 L.E.A. (N.S.) 525. 
 
 12 In re Lambuth, 18 Wash. 478, 
 51 Pac. 1071. 
 
 18 Matter of Manheim, 113 App. 
 Div. 13G, 99 N. Y. S. 87. 
 
 14 In re Robinson, 48 Wash. 153, 15 
 Ann. Cas. 415, 92 Pac. 929, 15 L.R.A. 
 (N.S.) 525. 
 
 15 In re Pryor, 18 Kan. 72, 26 Am. 
 Rep. 747. 
 
 16 In re Woolley, 11 Bush (Ky.) 
 95; In re De Armas, 10 Mart. 0. S. 
 (La.) 123; Morrison v. Snow, 26 
 
 Utah 247, 72 Pac. 924. 
 
 1'' Liddicoat v. Treglown, 6 Colo. 
 47; In re Mains, 121 Mich. 603, 80 
 N. W. 714, 6 Detroit Leg. N. 589; 
 In re Rockmore, 127 App. Div. 499, 
 111 N. Y. S. 879. And see also supra, 
 §§ 781, 782. 
 
 18 In re Murray, 58 Hun 604 mem., 
 11 N. Y. S. 336. 
 
 IS In re Snow, 27 Utah 265, 75 Pac. 
 741. 
 
 ao People V. Green, 9 Colo. 506, 13 
 Pac. 514; In re Mains, 121 Mich. 603, 
 80 N. W. 714, 6 Detroit Leg. N. 589. 
 
 1 In re Adriaans, 17 App. Cas. (D.- 
 C.) 30. 
 
§ 785] GROUNDS FOE DISBAEMENT. 1199' 
 
 ing decided a case without consideration or deliberation, or an 
 examination of the pleadings, proofs, or written arguments, as the 
 result "of either prejudice or corruption," and in "wilful viola- 
 tion of a known duty." ^ So, it is unprofessional conduct in an 
 attorney to incorporate improper criticisms of the court or any 
 of its judges in a pleading,' and it has been so held where an at- 
 torney charged a judge with "outrageous, persistent, continued 
 illegal and unlawful rulings." * It is also ground for disbarment 
 to charge a judge with favoritism toward a particular- attorney,* 
 or to incorporate in a petition for rehearing a statement to the 
 effect that it was rumored that certain judges would vote in the 
 interest of a political ring, and to intimate that a reinstatement 
 of the cause was the only way to escape from further scandalous 
 rumors.® While, under a statute in Oklahoma, an attorney cannot 
 be disbarred for filing a pleading, a petition with a pamphlet at- 
 tached which falsely and maliciously attacks the courts and judges 
 may be considered as evidence of the attorney's unfitness to prac- 
 tice law.' Where, however, it appears that charges of the char- 
 acter under consideration have been made in good faith, and with- 
 out malice, a temporary suspension from practice may be deemed 
 to be a sufficient chastisement.' So, a frank disavowal of any 
 intentional reflection upon the honor of the court or any of its 
 judges, accompanied with an apology, will be taken into considera- 
 tion in mitigation of punishment ; ® but, as stated heretofore,'"' 
 the language used cannot be purged of its ordinary meaning.'^ It 
 has been held that the filing of scandalous pleadings in a federal 
 circuit court of appeals, and even a disbarment in such court 
 
 z In re Hastings, 4 Am. L. Rev. V State Bar Commission v. SuUi- 
 
 173, 11 Fed. Cas. No. 6,199. van, 35 Okla. 745, 131 Pac. 703. 
 
 3 In re Roekmore, 127 App. Div. 8 People v. Green, 9 Colo. 506, 13' 
 499, 111 N. Y. S. 879. And see also Pae. 514; In re Robinson, 48 Wash. 
 supra, § 782. 153, 15 Ann. Cas. 415, 92 Pac. 929, 
 
 4 In re Mains, 121 Mich. 603, 80 15 L.R.A.(N.S.) 525. 
 
 'n. W. 714, 6 betroit Leg. N. 589. 9 In re Lambuth, 18 Wash. 478, 51 
 
 B Matter of Roekmore, 127 App. Pac. 1071. 
 
 Div. 499, 111 N. Y. S. 879. lO See supra, § 784. 
 
 6 In re Robinson, 48 Wash. 153, 15 n In re Roekmore, 127 App. Div. 
 
 Ann. Gas. 415, 92 Pac. 929, 15 L.R.A. 499, ]]! N. Y. S. 879; In re Snow, 27 
 
 (N.S.) 525. Utah 265, 75 Pac. 741. 
 
1200 GEOUBTDS FOE DISBAEMENT. [§§ 78G, 787 
 
 because thereof, will not, in itself, constitute a sufficient ground 
 for the disbarment of the offender from the federal courts of an- 
 other circuit.^* 
 
 § 786. Statements in Briefs. — A brief cannot be used as a 
 vehicle for the expression of hatred, contempt, insult, disrespect, 
 or professional discourtesy of any nature; and briefs which offend 
 in these particulars may be stricken from the files. '^ So, written 
 or printed arguments of this character constitute a contempt of 
 court, ^* and the attorney who presents them may -be prohibited 
 from proceeding further with the cause, without prejudice to any 
 other proceeding to punish him for his misconduct.*' And dis- 
 barment may be predicated on scandalous matter stated in a brief ; 
 thus, an attorney may be disbarred for abuse of the judges who 
 decided the case in the court below.** So, an open, notorious, and 
 public insult to the court by an attorney, in a brief on review, may 
 justify his suspension." And an attorney who characterizes one 
 of the judges of the appellate court as a corrupt person, and al- 
 leges that, should the decision of the court be adverse, the general 
 public will see that the court is corrupt, should be suspended from 
 practice." 
 
 § 787. Statements in Letters Written to Judge. — 
 
 Counsel who incorporates in a letter, written to a judge, state- 
 
 12 In re Watt, 149 Fed. 1009. And see also infra, §§ 791-792. 
 Compare People v. Green, 9 Colo. 15 Rahles v. J. Thompson & Sons 
 
 506, 13 Pac. 514, wherein it was held Mfg. Co., 137 Wis. 506, 119 N. W. 
 
 that a state court may disbar an at- 289, 23 L.R.A.(N.S.) 296. 
 torney because of allegations eon- 16 Kelley v. Boettcher, 82 Fed. 794, 
 
 tained in a bill filed in a federal 49 U. S. App. 620, 27 C. G. A. 177; 
 
 ^3ourt. U. S. V. Green, 85 Fed. 857. 
 
 And see also supra, § 763, as to the 17 In re Dunn, 85 Neb. 606, 124 
 
 effect of disbarment generally. N. W. 120. 
 
 13 Pittsburgh, C, C. & St. L. R. 18 In re Philbrook, 105 Cal. 471, 
 Co. V. Muncie & P. Traction Co., 166 38 Pac. 511, 884, 45 Am. St. Rep." 
 Ind. 466, 9 Ann. Cas. 165, 77 N. E. 59. 
 
 941. And see also supra, § 780, as to 
 
 14 In re WooUey, 11 Bush (Ky.) threatening, intimidating, or coercing 
 85. judges generally. 
 
§ 788] GROUNDS FOK DISBAKMENT, 1201 
 
 ments -which are abusive or insulting, or which reflect upon the 
 ■character or integrity of the judge, or the court of which he is a 
 member, may be disbarred.^* And where an attorney stated, in 
 such a letter, that he had been informed that the judge had visited 
 a prisoner at the jail during the night, and expressed sorrow for 
 him and dislike for his attorney, and that the writer had no pa- 
 tience or respect for a judge who would so far forget his oath as 
 to meet at night with the county solicitor and discuss how and 
 why a certain man should be tried, and that in the future the 
 writer desired the judge to act the gentleman toward him in court, 
 and that the judge would have to do so outside or the writer would 
 know why, it was held that such statements constituted ground for 
 •disbarment.^" So, where an attorney, in a letter written to a 
 judge, threatened, in the event of an adverse decision in a certain 
 case, to present grievances to the appellate court and the people, 
 his conduct was held to be unprofessional.* It is also unprofes- 
 sional conduct for an attorney to write to a judge, regarding a 
 decision rendered by him, that "it is not law ; neither is it com- 
 mon sense ; the result is, I have been robbed of eighty dollars." * 
 But a letter written on impulse, without any intentional reflection 
 on the integrity of the judge, may be overlooked, and an apology 
 accepted.' So, a letter couched in respectful language, written to 
 a judge in answer to one from him, and which suggested, by way 
 of answer, that the judge had lost the confidence of the public, and 
 that his retirement might restore it, has been held not to be such 
 a breach of professional duty as would warrant the writer's dis- 
 barment.* 
 
 § 788. Libeling the Court. — An attorney who is guilty of 
 writing and publishing a libelous charge against the court, or any 
 member thereof, in respect- to his official conduct, .or who procures 
 
 19 State Board of Law Examiners z In re Wilkes, 3 N. Y. S. 753. 
 
 v. Hart, 104 Minn. 88, 15 Ann. Cas. 3 In re Manheim, 113 App. Div. 
 
 197, 1]6 N. W. 212, 17 L.R.A.(N.S.) 136, 99 N. Y. S. 87. 
 
 585 ; In re Griffin, 1 N. Y. S. 7 ; In re And see also supra, % 784, as to dis- 
 
 Smith, 2 Lack. Leg. N. (Pa.) 152. avowal and apology generally. 
 
 20 .Johnson v. State, 152 Ala. 93, 4 In re Austin, 5 Rawle (Pa.) 191, 
 44 So. 671. 28 Am. Dec. 657. 
 
 1 In re Griffin, 1 N. Y. S. 7. 
 
 Attys. at L. Vol. II.— 76 
 
1202 GROUNDS FOE DISBARMENT, [§ 789' 
 
 the ■writing or publication of such a charge, may, and should be,, 
 disbarred from further practice.' Thus, it is cause for disbarment, 
 where an attorney directly procures or instigates the widespread 
 publication, in a newspaper, of false and malicious charges whieli 
 reflect on the integrity and official conduct of a judge, before whom 
 a cause is pending, for the purpose of improperly influencing or 
 unjustly discrediting his action.* Even where a judge is a candi- 
 date for re-election, an attorney may be disbarred for publishing,, 
 or procuring the publication of, false and scandalous accusations 
 against him ; and the question at issue, in such a case, is whether 
 the attorney's conduct sufficiently shows his unfitness as a member 
 of the bar.'' The deliberate publication of an accusation in a news- 
 paper, even though it be false, gives to it a gravity which verbal 
 criticism does not possess," and the wrong is aggravated and in- 
 tensified when it is the act of a sworn officer of the court. "To 
 call such an act 'misconduct' simply, is to express but little of its 
 vileness." ' E'er will the disclaimer of malice, although it may 
 be taken into consideration, purge the language used of its venom.^* 
 A reaffirmance of the truthfulness of the published charges will be 
 deemed to be an aggravation thereof. ^^ 
 
 § 789. Where Attorney Is Also Editor of New^spaper. — 
 
 Nor can an attorney at law shield himself, as against a charge of 
 having libeled the court or a judge thereof, by pleading that he is 
 also the editor of the newspaper wherein the charges were pub- 
 lished. His position at the bar enables him, in such case, to inflict 
 
 SU. S. V. Green, 85 Fed. 857; Cobb require disbarment. And see also 
 
 V. U. S. 172 Fed. 641, 96 C. C. A. supra, § 780. 
 
 477; In re Collins, 147 Cal. 8, 81 Tin re Thatcher, 80 Ohio St. 492,. 
 
 Pac. 220 ; State v. McClaugherty, 33 89 N. E. 39. 
 
 W. Va. 250, 10 S.,E. 407. 8 Cobb v. V. S. 172 Fed. 641, 96 C. 
 
 8 In re Collins, 147 Cal. 8, 81 Pac. C. A. 477. 
 
 220. 9 State t: McClaugherty, 33 W. Va. 
 
 In In re Wilcox, (Kan.) 133 Pac. 250, 10 S. E. 407. 
 547, the evidence was held to sustain 10 Cobb v. V. S., 179 Fed. 641, 96 C. 
 an accusation that the purpose of a C. A. 477; State v. McClaugherty, 33 
 libel published by an attorney was to W. Va. 250, 10 S. E. 407. And see- 
 defeat the administration of justice, also supra, § 784. Compare Ex p> 
 and that the charge so seriously af- Biggs, 64 N. C. 202. 
 fected his professional integrity as to n U. S. v. Green, 85 Fed. 857. 
 
§ 790] GROUNDS FOE DISBAEMENT. 
 
 1203 
 
 the greater wound, and he may be deprived of the privileges and 
 character Vi'hich it gives him, by suspension or expulsion, without 
 infringing on the freedom of the press.^^ But an attorney, who 
 also edits a newspaper, will not be disbarred merely because of the 
 publication of a misrepresentation of the facts connected with the 
 trial of a cause in the court wherein he practices as an attorney.** 
 Nor will a publication, in such cases, be groimd for disbarment 
 merely because the motives therefor were a desire for notoriety, 
 partisan malice, and a wilful, headlong zeal to promote partisan 
 interests.** 
 
 § 790. Fair Criticism as Distinguished from Libel. — 
 
 It must not, however, be understood that a lawyer, whether he also 
 edits a newspaper or not, cannot fairly criticise, and publish his 
 opinion of, the action of a court or judge thereof. *° Thus, in 
 speaking of a provision of the bill of rights in the Pennsylvania 
 constitution, which provided that "no conviction shall be had in 
 any prosecution for the publication of papers relating to the official 
 conduct of officers or men in public capacity, or to any other mat- 
 ter proper for public investigation or information, where the fact 
 that such publication was not maliciously or negligently made 
 shall be established to the satisfaction of the jury," Chief Justice 
 Sharswood said: "It would be a clear infraction of the spirit if 
 not the letter of this article to hold that an attorney can be sum- 
 marily disbarred for the publication of a libel on a man in a public 
 capacity, or where the matter was proper for public investigation 
 or information; for as he certainly does not forfeit his constitu- 
 tional rights as a freeman by becoming an attorney, it guarantees 
 
 win re Greevy, 4 W. N. C. (Pa.) l4Ex p. Steinman, 95 Pa. St. 220, 
 
 308. See also In re Egan, 24 S. D. 40 Am. Rep. 637, reversing 8 W. N. C. 
 
 301, 123 N. W. 478. 296. 
 
 In Ex p. Biggs, 64 N. C. 202, it "Cobb v. U. S., 172 Fed. 641, 96 
 was held that the answer of an at- C. C. A. 477 ; In re Thatcher, 80 Ohio 
 torney who was charged with having St. 492, 89 N. E. 39 ; Ex p. Steinman, 
 libeled the court in a newspaper which 95 Pa. St. 220, 40 Am. Kep. 637, re- 
 he edited was sufficiently atoned for versing 8 W. N. C. 296. 
 by a disavowal of any wrongful in- And see also supra, g 782. as to 
 tention. And see also supra, § 784. criticism of the court generally. 
 
 13 In re Greevy, 4 W. N. C. (Pa.) 
 308. See also the following section. 
 
1204 GROUNDS FOE DISBAEMENT. [§ 790 
 
 to him immunity from all liability to punishment" excepting as 
 therein provided. The distinguished jurist continued : "We need 
 not say that the case is altered, and that it is now the right and 
 the duty of a lawyer to bring to the notice of the people who elect 
 the judges every instance of what he believes to be corruption or 
 partisanship. ISTo class of the community ought to be allowed freer 
 scope in the expression or publication of opinions as to the capac- 
 ity, impartiality or integrity of judges than members of the bar. 
 They have the best opportunities of observing and forming a cor- 
 rect judgment. They are in constant attendance on the courts. 
 Hundreds of those who are called on to vote never enter a court- 
 house, or if they do, it is only at intervals as jurors, witnesses or 
 parties. To say that an attorney can only act or speak on this 
 subject under liability to be called to account and to be deprived 
 of his profession and livelihood by the very judge or judges whom 
 he may consider it his duty to attack and expose, is a position too 
 monstrous to be entertained for a moment." ^^ The greatest latitude 
 should be allowed in the criticism of the decisions of judges who 
 are candidates for re-election." So, the presentation of charges 
 against a judicial officer, in good faith and through the proper 
 channel, is a matter of legal right.** And where a letter addressed 
 ito a judge in respectful language, in response to one from him, was 
 not, in itself, a breach of professional fidelity, its character was 
 not altered by the publication of the correspondence in a news- 
 paper by an attorney for the purpose of defending his own repu- 
 tation, and not to assail the judge.** The motive with which a 
 publication has been made, it seems, is always entitled to 
 consideration.^" 
 
 16 Ex p. Steinman, 95 Pa. St. 220, "In re Austin, 5 Rawle (Pa.) 191, 
 
 .40 Am. Kep. 637, reversing 8 W. N. C. 28 Am. Dec. 657. 
 
 296. 20 In re Austin, 5 Eawle (Pa.) 191, 
 
 "State V. Circuit Ct., 97 Wis. 1, 28 Am. Dec. 657; Ex p. Steinman, 95 
 
 72 N. W. 193, 65 Am. St. Rep. 90, 38 Pa. St. 220, 40 Am. Rep. 637, revers- 
 
 I,.R.A. 554. ing 8 W. N. C. 296. 
 
 18 In re Collins, 147 Cal. 8, 81 Pac. 
 220; In re Eockmore, 127 App. Div. 
 499, 111 N. Y. S. 879. 
 
§ -791] GKOUJSTDS FOE DISBAEMENT. 1205 
 
 Contempt of Court. 
 
 § 791. Generally. — Attorneys at law are subject to fine or 
 other punishment for contempts of court committed by them ; ^ 
 and such contempt may appear from a refusal to obey any lawful 
 order of the court, or by offense or insult offered to the court or 
 to any of the judges thereof, or by any improper interference with 
 the due administration of justice.* It is not every indiscretion, 
 however, which will amount to a contempt.' It is never a con- 
 tempt for an attorney to advise his client of his legal rights and 
 remedies; and, therefore, an attorney is not chargeable with con- 
 tempt for advising the filing of a petition in bankruptcy, even 
 though the client was undergoing examination in supplementary 
 proceedings, and had been enjoined from disposing of his prop- 
 erty.* ISTor is an attorney guilty of contempt where he advises a 
 client that she may go where she pleases, and loans her money for 
 that purpose, merely because she has been released from arrest on 
 habeas corpus proceedings for a hearing as to her mental condi- 
 tion.° And where an attorney advised a client who was indicted 
 and under bail on a charge of assault and battery, that if he eouM 
 not procure a continuance of the cause on an affidavit, the client, 
 could leave the jurisdiction and forfeit his recognizance, which 
 would work a continuance until the next term, it was held that, 
 he was not guilty of a contempt of court.® Nor is an attorney 
 guilty of a contempt of court where he refuses to testify in a cer- 
 tain matter on the ground that his answers may tend to incriminate 
 him.'' Where a contempt has been committed, it may be explained 
 or disavowed and an apology offered, and this is usually the best 
 course to pursue ; ' but, as stated heretofore in another connection,' 
 
 1 Ex p. Cole, 1 McCrary 405, 6 Fed. 5 Edge v. Com., 139 Ky. 252, 129 S. 
 Cas. No. 2,973 ; Butler v. People, 2 W. 591 . 
 
 Colo. 295; Ex p. Robbing, 63 N. C. single v. State, 8 Blaekf. (Ind.)i 
 
 309. 574. 
 
 2 In re Woolley, 11 Bush (Ky.) 95; lln re Kaffenburgh, 188 N. Y. 49, 
 State V. Redmond, 9 La. Ann. 319; 80 N. E. 570, affirming 115 App. Div. 
 Watson V. Citizens' Sav. Bank, 5 S. 346, 101 N. Y. S. 507. 
 
 C. 159. 8 Slater v. Merritt, 75 N. Y. 268;, 
 
 SEx p. Robbins, 63 N. C. 309; Ex p. Biggs, 64 N. C. 202. 
 
 Wise V. Com., 97 Va. 779, 34 S. E. 453. 9 See supra, § 784. 
 4 In re Kepees, 123 N. Y. S. 872. 
 
1206 GEOUNDS FOE DISBAEMENT. [§ 792 
 
 where the matter is of itself necessarily a contempt, a disavowal, 
 though it may tend to excuse, cannot justify the act.'" 
 
 § 792. Contempt as Ground for Disbarment. — A con- 
 tempt of court may be of such a character as to warrant disbar- 
 ment; '* indeed, nearly every ground of disbarment is, in itself, 
 a contempt of court ; but, on the other hand, it is clear that a con- 
 tempt of court may frequently occur, and be punishable as such, 
 although the character thereof is not of sufficient gravity to consti- 
 tute ground for disbarment. The power to disbar an attorney for 
 cause shovm is distinct from the power to punish him for con- 
 tempt. ^^ In order to justify disbarment for contempt of court, 
 an attorney's conduct should be so serious as to render him un- 
 fitted for his office,'* as, for instance, where he has been guilty of 
 flagrantly insulting the court, or any judge thereof,'* or has re- 
 fused to obey its lawful orders ; '* but it is not contempt to appeal 
 from an order of the court rather than submit thereto,'* and this 
 is especially true where the order is reversed on appeal." 'Not 
 will an attorney be disbarred for his neglect to appear before an 
 examiner as a witness." In the determination of disbarment pro- 
 ceedings, based upon a contempt of court, due consideration will 
 be given to extenuating circumstances which tend to show that no 
 intentional disrespect either for the law or the court was meant. 
 Thus, the court will consider a disavowal and apology, and these, 
 together with other facts which go to show that the attorney 
 acted in good faith, or was actiiated by sudden impulse, or that 
 the language used or acts done do not bear an objectionable 
 
 10 In re WooUey, 11 Bush (Ky.) 95. 14 In re Woolley, 11 Bush (Ky.) 95. 
 
 11 In re Woolley, 11 Bush (Ky.) 95; IB Jeffries v. Laurie, 23 Fed. 786, 27 
 State i: Root, 5 N. D. 487, 67 N. W. Fed. 195; In re Burris, 101 Cal. 624, 
 596, 57 Am. St. Rep. 568. See also 36 Pac. 101; People v. Salomon, 184 
 In re Elliott, 18 S. D. 264, 100 N. W. 111. 490, 56 N. E. 815; In re Radford, 
 431. 168 Mich. 474, 134 N. W. 472. 
 
 18 Ex. p. Robinson, 19 Wall. 505, 22 16 Hendrick v. Posey, 104 Ky. 8, 45 
 
 U. S. (L. ed.) 205; In re Adriaans, S. W. 525, 46 S. W. 702, 20 Ky. L. 
 
 17 App. Cas. (D. C.) 39. Rep. 359. 
 
 13 Ex p. Robinson, 19 Wall. 505, 22 " Garrigus v. State, 93 Ind. 239. 
 
 U. S. (L. ed.) 205; Watson V. Citi- 18 Com. v. Newton, 1 Grant Cas. 
 
 zens' Sav. Bank, 5 S. C. 159. (Pa.) 453. 
 
§ 793] GKOUNDS FOE DISBARMENT. 1207 
 
 •construction when explained, will tend to avert disbarment.^' 
 Irrespective of the character of the contempt, disbarment should 
 not be ordered therefor in the contempt proceedings,^" nor is it 
 proper for the court, in proceedings for contempt, to order an at- 
 ■ torney's disbarment if he fails to purge himself of the contempt.^ 
 
 Misconduct toward Attorneys. 
 
 § 793. Fair and Honorable Treatment Essential. — 
 
 A proper respect for the due administration of justice requires 
 that an attorney at law should be fair and honorable, not only with 
 the court and his client, but also with fellow-members of the bar, 
 especially where they represent his client's adversary.* "Nothing 
 is more certain than that the practitioner will find, in the long 
 run, the good opinion of his professional brethren of more im- 
 portance than that of what is commonly called the public. The 
 foundations of the reputation of every truly great lawyer will be 
 discovered to have been laid here," says an eminent author and 
 jurist.' It has been held to be ground for disbarment for an at- 
 torney to intermeddle between a brother attorney and his client, 
 to slander the former, and to endeavor to induce the client to for- 
 sake him and follow the intermeddler instead.* ISTor is it any 
 defense, in a proceeding for disbarment on the ground of having 
 made false and scandalous statements of a fellow-member of the 
 bar, that such statements do not constitute a technical or indictable 
 
 19 See supra, § 784. See also In re Pac. 493, 26 L.R.A.(N.S.) 1033; Sim- 
 Lizotte, 32 R. I. 386, 79 Atl. 960, 35 mona v. State, 4 Okla. Crim. 490, 114 
 L.R.A. (N.S.) 794. Pac. 752, denying rehearing in i Okla.. 
 
 20 People V. Kavanagh, 220 111. 49, Crim. 489, 112 Pac. 35; Crawford v. 
 77 N. E. 107, 110 Am. St. Rep. 223; Ferguson, 5 Okla, Crim. 377, 115 Pac. 
 State V. Root, 5 N. D. 487, 67 N. W. 278. 
 
 590, 57 Am. St. Rep. 568. And see 3 Sharswood's Ethics, p. 75. 
 
 also infra, § 871. 4 Baker r. State, 90 Ga. 153, 15 S. 
 
 lEx p. Kearby, 35 Tex. Crim. 634, E. 788. And see to the same effect 
 
 .^4 S. W. 962; State v. Sachs, 2 Wash. State v. Martin, 45 Wash. 76, 87 Pac. 
 
 373, 26 Pac. 865, 26 Am. St. Rep. 857. 1054. See also In re Stephens, 84 
 
 3 Wernimont v. State, 101 Ark. 210, Cal. 77, 24 Pac. 46; Finley r. Acme 
 
 Ann. Cas. 191 3D 1156, 142 S. W. Kitchen Furniture Co., 119 Tenn. 698, 
 
 194; Brooks t. Brooks, 90 N. C. 142; 109 B. W. 504. 
 Caples r. State, 3 Okla. Crim. 72, 104 
 
1208 GROUNDS FOK DISBARMENT. [§ 794r 
 
 crime; nor does the question of privilege arise, as the only ques- 
 tion to be determined is the fitness of the respondent to practice 
 law.* It has been held, however, that the court will not disbar 
 an attorney for the insertion of scandalous matter, in a petition, 
 as to the moral character of another attorney, where there is an 
 adequate remedy by contempt proceedings.* 
 
 § 794. Improper Conduct. — An attorney who approached 
 counsel for the other side of a case, and fraudulently pretended 
 to have knowledge of certain facts which he offered to sell for the 
 purpose of inducing an offer of settlement, which otherwise would 
 not have been made, was disbarred.' And statements to the effect 
 that a prosecuting officer was selling the power of his office, and 
 that he had no right to the office, and was disqualified because of 
 being attorney for the prosecuting witness, may, at least in con- 
 nection with evidence of other misconduct, warrant disbarment. *^ 
 It has also been held to be ground for disbarment where an at- 
 torney charged a judge with favoritism toward a particular attor- 
 ney of his court.' And an attempt, on the part of an attorney, to- 
 make opposing counsel drunk, in order that he might obtain an 
 advantage in the trial of a cause, is a good ground for striking 
 the offender's name from the roll of attorneys. The court said, 
 in speaking of this caser "This was a wicked act, as well as one 
 which struck directly at the due administration of justice. In 
 its effect and criminal purpose it differs none from tampering- 
 with a juror, corrupting a witness or bribing a judge. It strikes, 
 directly at the interests of the opposite party, with as great force 
 as if he lost his cause from the misconduct of juror, witness or 
 judge. The man who can do this thing is unfit to practice in a 
 court where justice is administered, and should be expelled from 
 its bar; or at least should be suspended from the practice until' 
 he has shown by sincere amendment, that his offense is thoroughly- 
 
 sin re Adriaans, 17 App. Cas. (D. Sin re Adriaans, 17 App. Cas. (D- 
 
 C.) 39. C.) 39. 
 
 6 People V. Berry, 17 Colo. 322, 29 9 Matter of Rockmore, 127 App. 
 
 Pac. 904, distinguishing People v. Div. 499, 111 N. Y. S. 879. 
 Green, 9 Colo. 506, 13 Pac. 514.. 
 
 Tin re Enright, 67 Vt. 351, 31 Atl. 
 786. 
 
§ 795] GROUNDS FOE DISBAEMENT. 120& 
 
 purged." '" So, it has been held that the institution of proceed- 
 ings for the disbarment of a brother attorney, from improper 
 motives and without just ground, is misconduct for which an 
 attorney is at least censurable.^^ But where an attorney repre- 
 sented to opposing counsel that he had no defense, and promised 
 to pay a sum for which his client was sued within a certain time, 
 because of which promise delay was granted, and, through the 
 attorney's misconduct, such sum was not paid, but the adverse 
 party was obliged to collect his claim by execution, it was held 
 that such conduct, while deserving of condemnation, did not war- 
 rant disbarment.^* 
 
 Misconduct toward Client. 
 
 § 795. Generally. — In dealing with his client, an attorney 
 must act with entire good faith, and take no undue advantage of 
 him ; '* and the failure to so conduct himself may constitute a 
 sufficient ground for his disbarment, providing, of course, that 
 his indiscretions show him to be unfitted for his office.^* Thus, an 
 attorney may be disbarred for the failure to apply money received 
 from his client as directed, especially where the client is injured 
 thereby.^' So, disbarment may be predicated on the fact that an 
 attorney failed to render services agreed upon, and refused to 
 return the compensation received by him therefor, in pursuance of 
 an agreement so to do.'® Nor should an attorney, without his 
 client's consent, substitute himself for another as his client's 
 debtor." And an attorney for an administrator, who borrows 
 from his client money belonging to the estate and deposits the 
 
 10 Dickens's Case, 67 Pa. St. 169, 5 908 ; State v. Richardson, 122 La. 
 
 Am. Rep. 420. 1064, 48 So. 458. 
 
 "In re Kelly, 62 N. Y. 198. See ^^I" re Stern, 120 App. Div. 375, 
 
 also In re Cooksey, 79 Kan. 550, 100 105 N. Y. S. 199. 
 
 Pae 62 '* 1° ^^ McDermit, 63 N. J. L. 476, 
 
 l^lnre Cohn, 150 App. Div. 470, *3 Atl. 685; In re O'Sullivan, 122 
 
 134 N Y S. 1103. "^PP- °'^- ^^^' ^"^ ^- ^- ^- *^2- ^^^ 
 
 also Matter of Mahoe, 3 Hawaii 255; 
 18 See supra, §§ 152-182. j„ ^^ Voxman, 148 App. Div. 286, 132 
 
 l4Wernimont v. State, 101 Ark. n. Y. S. 217; In re Elliott, 18 S. D. 
 
 210, Ann. Cas. 1913D 1156, 142 S. W. 264. 100 N. W. 431. 
 
 194; State i;. Rohrig, (la.) 139 N. W. "In re Aldrich, (Vt.) 86 Atl. 801. 
 
1210 GKOUNDS FOE DISBAEMENT. [§ T96 
 
 same in a bank to his own credit, and it is there applied to his 
 use, is guilty of misconduct which will warrant his suspension 
 from practice.'' 
 
 § 796. Fraud and Deceit. — The perpetration of a fraud or 
 deceit upon a client by his attorney constitutes a sufficient ground 
 for disbarment, and in several jurisdictions it is so provided by 
 statute." Thus, disbarment may be ordered where an attorney 
 corruptly consents to the entry of judgment against his client,^* 
 or unlawfully procures the entry of such a judgment,' or where he 
 institutes a criminal proceeding for the purpose of extorting money 
 from his client,^ or where he receives money in his official ca- 
 pacity and converts the same to his own use for the purpose of 
 frustrating the object of the person paying it,* or where he de- 
 ceives his client by means of forgeries,* or procures from the 
 client the execution of instruments containing clauses that the 
 client supposed had been erased.' So, an attorney may be dis- 
 barred where he falsely advises a client that she is entitled to 
 contest a will as next of kin, when he knows that the client has no 
 such right; ^ and also where he verifies and files objections to the 
 probate of a will contrary to the directions of his client,'' or where 
 
 18 In re Freedman, 113 App. Div. prisonment for a year and a day, and 
 327, 99 N. Y. S. 135. See also In re perpetual silence in the courts." 3 
 Burris, 101 Cal. 624, 36 Pac. 101. Bl. Com. 29. 
 
 19 Ar/cansos.— Wernimont v. State, 2C People v. Lamborn, 2 111. 123. 
 101 Ark. 210, Ann. Cas. 1913D 1156, l In re Wartman, (N. J.) 31 Atl. 
 142 S. W. 194. 1040. 
 
 Colorado. — People v. Sindlinger, 28 J2 People v. Friscli, 218 111. 275, 75 
 
 Colo. 258, 64 Pac. 191. N. E. 904. 
 
 Georgia. — Jones f. McCullough, 138 sin re Orwig, 31 Leg. Int. (Pa.) 
 
 Ga. 16, 74 S. E. 694. 20. 
 
 Iowa. — Slemmer v. Wright, 54 la. 4 Ex p. Kindt, 32 Ore. 474, 52 Pac. 
 
 164, 6 N. W. 181. 187. 
 
 'New York. — In re Clark, 184 N. Y. 5 In re Gluck, 139 App. Div. 894, 
 
 222, 77 N. E. 1, affirming 108 App. 123 N. Y. S. 857. 
 
 Div. 150, 95 N. Y. S. 388 ; In re Gluck, e in re Randall, 122 App. Div. ],. 
 
 139 App. Div. 894, 123 N. Y. S. 857. 106 N. Y. 943, affirmed 196 N. Y. 
 
 And see also supra, § 356. 569, 90 N. E. 1165. 
 
 "Counsel guilty of deceit or col- Tin re Randall, 122 App. Div. 1, 
 
 lusion are punishable by the statute 106 N. Y. S. 943, affi,rmed 196 N. Y. 
 
 Westm. 1, 3 Edw. I, c. 28, with im- 569, 80 N. E. 1165. 
 
§ 797] GROUNDS FOE DISBARMENT, 1211 
 
 he deceives a client as to services rendered/ fees due,' or disburse- 
 ments made ; ^^ or where he conceals from the client the fact that 
 he has settled the litigation,*^ or deceives his client by assurances 
 that a case is on the calendar and is being diligently prosecuted, 
 when, in fact, the case has not been noticed for trial.*^ 
 
 § 797. False Representations. — An attorney who obtains 
 the money or other property of his client by means of false rep- 
 resentations should be disbarred.*' It has been so held where 
 money was obtained on the strength of false representations as lo 
 the validity of security therefor,** and also as to false representa- 
 tions as to the client's liability under a certain judgment.*' So, an 
 attorney may be disbarred where he obtains money from his client 
 by falsely representing that certain legal proceedings are pending, 
 and that the money is required therefor,** or that the money is 
 needed to pay costs,*' or to bribe a referee in bankruptcy.*' And 
 where an attorney obtained money from his client on a statement 
 to the effect that it was necessary for the protection of her inter- 
 ests that such money should be deposited, and, instead of making 
 
 8 In re Eyan, 143 N. Y. 528, 38 N. Minnesota.— In re Novotny, 142 N. 
 E. 963. And see In re Gluck, 139 W. 733. 
 
 App. Div. 894, 123 N. Y. S. 857. New Yorlc— In re Andrews, 137 
 
 9 Tate V. Field, 60 N. J. Eq. 42, 46 App. Div. 353, 121 N. Y. S. 935. 
 Atl. 952. South Dakota.— In re Elliott, 18 S. 
 
 icin re Eadford, 168 Mich. 474, D. 264, 100 N. W. 431. 
 
 134 N. W. 472. And see also supra, §§ 157, 158. 
 "In re Simpson, 9 N. D. 379, 83 14 State t. Cadwell, 16 Mont. 119, 
 
 N. W. 541. 40 Pac. 176; In re Young, 75 N. J. L. 
 
 13 In re Boehm, 150 App. Div. 443, 83, 67 Atl. 717; In re Logan, 143 App. 
 
 135 N. Y. S. 42. Div. 225, 128 N. Y. S. 134. 
 
 IS United 8tates.—In re Snyder, 24 16 Fairfield County Bar v. Taylor, 
 
 Fed. 910. 60 Conn. 11, 22 Atl. 441, 13 L.R.A. 
 
 California. — In re Burris, 101 Gal. 767. 
 
 624, 36 Pac. 101. 16 People v. Mead, 29 Colo. 344, 68 
 
 Colorado. — People v. Sindlinger, 28 Pac. 241; People v. Belinski, 205 111. 
 
 Colo. 258, 64 Pac. 191. 564, 69 N. E. 5; In re Simpson, (N. 
 
 Hawaii. — Matter of Mahoe, 3 Ha- J.) 82 Atl. 507. 
 
 waii 255. IT In re Elliott, 18 S. D. 264, lOO 
 
 Illinois.— People v. Ford, 54 111. N. W. 431. 
 
 520; People v. Frisch, 218 111. 275, 75 "State i'. Grover, 47 Wash. 39, 91 
 
 N. E. 904. Pac. 564. 
 
1212 GROUNDS rOK DISBARMENT. [§ 79S 
 
 such deposit, appropriated said money to his own use without his- 
 client's knowledge or consent, it was held that his misconduct war- 
 ranted disbarment." So, an attorney who obtains money because 
 of a false representation that he was authorized to practice in the 
 federal courts, may be disbarred.^" Disbarment may also result 
 from false statements as to the amount of money which an attor- 
 ney has collected for his client,^ or as to the character of other at- 
 torneys,* or for the purpose of carrying on a fraud previously per- 
 petrated,^ as, for instance, as to the disposition of the client's, 
 money.* It is equally reprehensible to procure third persons to- 
 make false statements to the client, and upon the strength there- 
 of to induce the client to advance money, or enter into litigation.* 
 
 § 798. Representing Conflicting Interests. — Attorneys 
 cannot represent conflicting interests,* or take money from both 
 sides ; '' and if this plain duty is disregarded, to a client's preju- 
 dice, disbarment may follow.* An attorney who, after having been 
 employed by one party, seeks employment by the adverse party, 
 offering to impart to the latter important information, is guilty of 
 such a breach of trust as requires his disbarment.® And where an 
 attorney, employed and paid by a defendant who has been sued for 
 damages, has himself substituted as attorney for the plaintiff, and 
 in that capacity attempts to effect a settlement which the plaintiff 
 
 19 Matter of Cohen, 120 App. Div. 6 In re Durant, 80 Conn. 140, 10 
 378, 105 N. Y. S. 84; In re Sham- Ann. Cas. 539, 67 Atl. 497. 
 
 roth, 148 App. Div. 828, 133 N. Y. S. 6 See supra, §§ 174-182. 
 
 514. See also In re Burris, 101 Cal. ^ People v. Keithley, 225 111. 30, 80- 
 
 624, 36 Pac. 101. N. E. 50; In re Bowman, 7 Mo. App. 
 
 20 In re Danford, 157 Cal. 425, 108 569. 
 
 Pac. 322. 8 In re Cowdery, 69 Cal. 32, 10 Pac. 
 
 1 Slemmer v. Wright, 54 la. 164, 6 47, 58 Am. Rep. 545 ; In re Whitte- 
 
 N. W. 181; In re Weed, 26 Mont. 507, more, 69 Cal. 67, 10 Pac. 68; Cowley 
 
 68 Pac. 1115. t: O'Connell, 174 Mass. 253, 53 N. E.. 
 
 i See supra, § 794. And see also In 1001, 54 N. E. 558; In re Gadsden, 
 
 re Stephens, 84 Cal. 77, 24 Pac. 46. 89 S. C. 352, 71 S. E. 952; In re 
 
 3 In re Voxman, 148 App. Div. 286, , 73 Wis. 602, 42 N. W. 221. 
 
 132 N. Y. S. 217. 9 U. S. v. Costen, 38 Fed. 24; In re 
 
 4 Matter of Wright, 12 C. B. N. S. Boone, 83 Fed. 944. 
 705, 104 E. C. L. 705. See also People 
 
 V. Betts, 26 Colo. 521, 58 Pac. 1091. 
 
:§ 799] GKOtTNDS FOE DISBARMENT. 1213 
 
 was willing to make prior to the substitution, he is guilty of mis- 
 •conduct, and will be at least censured.'" So, an attorney may be 
 disbarred where he urges a criminal prosecution against a certain 
 person and assists therein, and thereafter appears for the de- 
 fense ; '* or where, while acting as attorney for the prosecutor in a 
 criminal case, he accepts money from the defendant in consider- 
 ation of a dismissal.'* And it has been held that a prosecuting 
 attorney violates his duty by appearing for the defendant in an in- 
 dictment found during his term of oiSce.'* So, the conduct of a 
 ■city attorney who, after his term of office, accepted a retainer to 
 refrain from appearing against the city in any suit then pending, 
 and who subsequently appeared in such a suit, was held to justify 
 his suspension, even though he had no knowledge of the law or the 
 facts of the suit undertaken by him at the time he accepted the 
 retainer from the city.'* But the acceptance of a retainer from 
 persons whose interests are adverse to those of the client, under 
 a mistake of fact, will not justify disbarment,'^ nor is an attor- 
 ney guilty of unprofessional conduct for failing to disclose to his 
 client all of his connection with antagonistic interests, especially 
 where the client has been informed of the essentials, and the at- 
 torney has reason to believe that the client is familiar with the 
 facts.'« 
 
 § 799. Acquiring Adverse Interests. — Counsel should not 
 acquire interests adverse to those of their clients, and this is par- 
 ticularly true as to the acquisition of an interest in the subject- 
 matter of litigation which an attorney is employed to conduct.''' 
 
 10 In re Eeifschneider, 60 App. Div. filed the information, and it was held 
 478, 69 N. Y. S. 1069. that, in the absence of proof of the 
 
 11 People 0. Spencer, 61 Cal. 128; use of knowledge secured while act- 
 In re Stephens, 77 Cal. 357, 19 Pac. ing as prosecuting attorney, there was 
 646. no cause for disbarment. 
 
 12 Tudor V. Com., 84 S. W. 522, 27 l* In re Cowdery, 69 Cal. 32, 10 
 Ky. L. Eep. 87. Pac. 47, 58 Am. Eep. 545. 
 
 13 People V. Spencer, 61 Cal. 128. 15 In re Luce, 83 Cal. 303, 23 Pac. 
 Compare People v. Johnson, 40 350. 
 
 Colo. 460, 90 Pac. 1038, wherein it ap- 16 Davis v. Chattanooga Union E. 
 
 peared that a district attorney repre- Co., 65 Fed. 359. 
 
 sented the defendant in a criminal 17 See supra, §§ 164-173. 
 
 «ase wherein, as prosecutor, he had 
 
1214 GROUNDS FOR DISBARMENT. [§ 800 
 
 In a case where disbarment was ordered beca^ise of a violation of 
 this rule, it was said: "The main fact which stands out in this 
 whole investigation is that it never seems to have occurred to the 
 respondent that there was any impropriety in his acquiring from 
 his clients their property that he was employed to preserve and 
 protect, or that the respondent was under any obligations to his 
 clients, when he wished to purchase their property, to state that he 
 was himself interested in the purchase, and that it was made on 
 his behalf. He took the titles in the name of his dummies without 
 disclosing the fact that the dummies represented him or that the 
 dummies were his clerks or associates, and then continued to con- 
 duct the proceeding for the valuation of his property in the name 
 of his clients, suppressing from the commissioners and the experts 
 who valued the property the fact of the purchase and all facts 
 within his knowledge that would affect the value of the proj)- 
 erty." ^' So, where an attorney procures an assignment of his 
 client's property to the client's prejudice, whether such property be 
 the subject-matter of litigation or not, his conduct may constitute 
 a sufficient ground for disbarment.'^ Nor can an attorney ac- 
 quire his client's property at a judicial sale to his client's detri- 
 ment ; ^^ and where an attorney does so acquire property, under cir- 
 cumstances showing that an undue advantage has been taken of 
 the client, the attorney will be disbarred.' Of course, where 
 property is acquired by an attorney, even though it is the sub- 
 ject-matter of litigation, in a fair and honorable manner, and 
 without false representation, undue advantage, fraiid or deceit, no 
 ground for disbarment exists because of the transaction.^ 
 
 § 800. Undue Advantage. — It is highly unprofessional for 
 an attorney to procure either the money or property of his client 
 by taking an undue advantage of him,^ and such conduct may con- 
 ■stitute a sufficient ground for disbarment. Thus, an attorney fo? 
 
 18 In re Flannery, 150 App. Div. l People v. Murphy, 119 111. 159, 6 
 369, 135 N. Y. S. 612. N. E. 488. 
 
 19 In re Ramsey, 24 S. D. 266, 123 « See supra, § 154. See also Geld- 
 N. W. 726. See also Matter of V., ers v. Haygood, 182 Fed. 109; In re 
 10 App. Dlv. 491, 42 N. Y. S. 268. Reese's Estate, 41 Pa. Super. Ct. 72. 
 And ace supra, §§ 157, 158, 796. 8 See supra, §§ 152-162. 
 
 20 See supra, § 166. 
 
§ 801] GEOTJNDS FOE DISBARMENT. 1215 
 
 an administrator, who induces a distributee of the estate to exe- 
 cute a release of her share, such distributee being quite old and 
 unfamiliar with business affairs, may be disbarred if a fraudu- 
 lent motive, or want of integrity, be sufficiently shown.* It is 
 also ground for disbarment for an attorney to procure convey- 
 ances, of practically all her property, from a mentally incompe- 
 tent client.' And where a weak-minded person fled to another 
 state believing that he was guilty of a certain crime, an attorney 
 who represented him, and who knew that he was innocent, will be 
 disbarred where he fraudulently procured large sums of money 
 from his client on the pretext of saving him from arrest and con- 
 viction.® But an attorney's acceptance of a retainer from a client 
 to investigate his rights is not improper, even though he knows 
 that his client is of unsound mind, or later discovers that fact ; to 
 hold otherwise would deprive an insane person of the aid and as- 
 sistance of counsel ; ' contracts of this character, however, must be 
 fair and reasonable.' 
 
 § 801. Misconduct in Connection with Settlements. — 
 
 It has been held that disbarment may be ordered where an attor- 
 ney settles litigation and conceals that fact from his client,' or 
 where he takes an undue advantage of his client with respect to 
 the making of a settlement ; ^'' so, where suits were settled by the 
 parties themselves and counsel paid for their services, it was held' 
 to be misconduct, which justified suspension, for the plaintiff's 
 attorney to proceed to collect costs from the defendant by taking a 
 default judgment and issuing execution, before he ascertained 
 whether the settlement had provided for the payment of such 
 costs.'^.But it is not unprofessional conduct for an attorney to in- 
 struct his client not to settle privately.^* 'Nov is it misconduct for 
 an attorney to settle a claim, as he was authorized to do, without 
 
 *In re Gadsden, 89 S. C. 352, 71 S. 8 See supra, §§ 438, 428-432. 
 
 E. 952. 9 In re Simpson, 9 N. D. 379, 83 N. 
 
 5 In re Egan, 22 S. D. 355, 117 N. W. 541. 
 
 W. 874, reviewed and reaffirmed 24 l(» Matter of V., 10 App. Div. 491, 
 
 S. I). 301, 123 N. W. 478. 42 N. Y. S. 268. 
 
 6 In re Snyder, 24 Fed. 910. "In re Aldrich, (Vt.) 86 Atl. 801. 
 
 T People V. Adams, 249 111. 524, 94 l^ Grievance Committee v. Ennis, 
 
 N. E. 950. 84 Conn. 594, 80 Atl. 767. 
 
1216 GROUNDS FOE DISBAEMEBTT. [§ 802 
 
 first reporting the offer of settlement to his client.*' And an at- 
 torney who contracted to prosecute a claim for the personal injury 
 of a minor for one half the recovery, will not be disbarred, at least 
 in the absence of a showing of corrupt motive, because he charged 
 that sum on the settlement of the litigation.** So, where an at- 
 torney received a sum of money for the settlement of a charge of 
 petit larceny, and he settled for a lesser sum, and retained the 
 balance for his fees, the amount retained not being excessive, it was 
 held that, although his conduct was censurable, it did not consti- 
 tute ground for disbarment.** Nor will an attorney be disbarred 
 because, in making a settlement, he conceals the weakness of his 
 client's case.*^ ^ 
 
 § 802. Overcharging Client. — In the absence of a special 
 contract, an attorney is only entitled to reasonable compensation 
 for his services; *'' and while the amount of compensation may 
 be regulated by contract,*' it is essential that such contract be fair- 
 ly and honestly entered into, and that the attorney should disclose 
 any information which may be necessary for the guidance of the 
 client in the premises; unconscionable contracts will not be up- 
 held.*' An exorbitant or fictitious charge, especially where it is 
 accompanied by other acts of unprofessional .conduct, will consti- 
 tute a sufficient ground for disbarment ; "" and where a bill ren- 
 
 13 Grievance Committee v. Ennis, Illinois. — People v. Stirlen, 224 111. 
 
 84 Conn. 594, 80 Atl. 767. 636, 79 N. E. 969. 
 
 1* Grievance Committee v. Ennis, Montana. — See In re Weed, 26 
 
 84 Conn. 594, 80 Atl. 767. Mont. 507, 68 Pac. 1115. 
 
 IB In re Woytisek, 120 App. Div. ^««' York.— In re —. 86 N. 
 
 373, 105 N. Y. S. 144. Y. 563; In re Ryan, 143 N. Y. 528, 38 
 
 16 Grievance Committee v. Ennis, ^- ^- ^^^■ 
 
 84 Conn. 594, 80 Atl. 767. *'""*'' Oakota.— In re Simpson, 9 
 
 17 See supra, §§ 447-449. See also 
 State V. Rohrig, (la.) 139 N. W. 908. 
 
 18 See supra, §§ 417-427. 
 
 19 See supra, §§ 428-432. 
 
 N. D. 379, 83 N. W. 541. 
 
 Ohio. — See In re Thatcher, 83 Ohio 
 St. 246, Ann. Cas. 1912A 810, 93 N. E. 
 895. 
 
 Pennsylvania. — Appeal of Maires, 
 80 Colorado.— Feo^U v. Varnum, 28 j^d Pa. St. 99, 41 Atl. 988, 43 W. N. 
 
 Colo. 349, 64 Pac. 202. q 3^] 
 
 Georgia.— Baker v. State, 90 Ga. Wisconsin.— ^ee In re , 73 
 
 153, 15 S. E. 788. Wis. 602, 42 N. W. 221. 
 
■^ 803] GKOUNDS rOE DISBAEMENT. 1217 
 
 -dered by an attorney for prosecuting a suit for his client is not 
 ■only fraudulently untrue as to items for services not rendered, but 
 inflated throughout by charges beyond what the services were 
 worth, and shows a fraudulent intent, the court may proceed sum- 
 marily against him.* Eut it is not unprofessional to retain com- 
 pensation due out of a sum collected for a client,^ nor can an at- 
 itorney be disbarred merely because of an apparently excessive 
 charge.^ It would seem that the proper practice in cases of this 
 character would be to proceed by suit,* or summary proceeding,* 
 for the recovery of the sum withheld ; and, should the client pre- 
 vail, disbarment might follow, especially if the attorney refused 
 to pay the sum found to be due.* 
 
 § 803. Changed View of the Law. — Of course, an attorney 
 ■should not accept a retainer in a case when he believes that his 
 client cannot succeed. But the fact that an attorney has, under a 
 prior retainer, advocated views of the law and facts different from 
 those upon which his client rests his case, or has officially, as a 
 judge or officer of the government, held a different view of the 
 law and the rights of the parties, will not of itself disqualify him 
 from accepting a retainer. He has the right and privilege, pos- 
 sessed by all men, to change his views upon the law and the facts 
 ■of a case when reason requires it. It would be absurd to say that 
 a lawyer or judge, having once expressed an opinion upon legal 
 •questions, shall never change it, or that a judicial or official de- 
 •cision will forever bind the person announcing it. From the na- 
 ture of legal questions, which depend upon a combination of facts 
 for their correct decision, it is to be expected that lawyers will not 
 -always, in their solution, apply the same principles or reasoning.'' 
 'Thus, it has been held that an attorney will not be disbarred mere- 
 ly because, at one time, he expressed an opinion that a certain deed 
 
 ITate V. Field, 60 N. J. Eq. 42, 46 Ennis, 84 Conn. 594, 80 Atl. 767; In 
 
 .Atl. 952. See also In re Eadford, re Aldrich, (Vt.) 86 Atl. 801. 
 
 168 Mich. 474, 134 N. W. 472. * See supra, §§ 344-353. 
 
 2 See supra, § 476. See also In re 5 See supra, §§ 354-364. 
 Aldrich, (Vt.) 86 Atl. 801. 6 See infra, §§ 804-815. 
 
 3 In re Luce, 83 Cal. 303, 23 Pac. 7 Smith v. C, & N. W. E. Co., 60 
 350 : People v. Eobinson, 32 Colo. 241 , la. 515, 15 N. W. 291. 
 
 -.75 Pac. 922; Grievance Committee v. 
 Attys. at L. Vol. II.— 77. 
 
1218 
 
 GEOUNDS FOE DISBARMENT. 
 
 [§ 804 
 
 was valid, and that he afterwards brought suit against the grantee 
 to recover the land because of defects, not involving such deed, in. 
 the title." 
 
 Misappropriation of Client's Funds. 
 
 § 804. General Rule. — It is the duty of an attorney to pay 
 over such funds of the client as may come into his hands,' less his 
 fees ; ^^ and should he fail to do so, or convert the same to his own 
 use, or otherwise misappropriate such funds, he may be disbarred.''' 
 
 SGelders v. Haygood, 182 Fed. 109. 
 
 9 See supra, § 328. 
 
 10 See supra, § 476. 
 
 11 United States. — Jeffries v. Lau- 
 rie, 27 Fed. 195. 
 
 California. — In re Treadwell, 67 
 Cal. 353, 7 Pac. 724; In re Tyler, 71 
 Cal. 353, 12 Pac. 289, 13 Pac. 169. 
 
 Colorado. — People v. Ryalls, 8 Colo. 
 332, 7 Pac. 290; People v. Selig, 25 
 Colo. 505, 55 Pac. 722; People v. Wal- 
 key, 26 Colo. 483, 58 Pac. 591; People 
 V. Hays, 28 Colo. 82, 62 Pac. 832 ; Peo- 
 ple V. Waldron, 28 Colo. 249, 64 Pac. 
 186; People v. Keegan, 30 Colo. 71, 
 69 Pac. 524; People i;. Nicholas, 36 
 Colo. 42, 84 Pac. 67. 
 
 Delmeare. — In re Hoffecker, 60 Atl. 
 981. 
 
 Georgia. — See Baker v. State, 90 
 Ga. 154, 15 S. E. 788. 
 
 Illinois. — People v. Palmer, 61 111. 
 255; People v. Cole, 84 111. 327; Peo- 
 ple v. Salomon, 184 111. 490, 50 N. E. 
 815; People v. Pattison, 241 111. 89, 
 89 N. E. 254; People v. Allen, 244 
 111. 393, 91 N. E. 463. 
 
 Indiana. — Reilly v. Cavanaugli, 32 
 Ind. 214. 
 
 Iowa. — Slemmer r. Wright, 54 la. 
 164, 6 N. W. 181; State v. Eohrig, 
 139 N. W. 908. 
 
 Kansas. — In re Wilson, 79 Kan. 
 
 674, 17 Ann. Cas. 690, 100 Pac. 635,. 
 21 L.R.A.(N.S.) 517. 
 
 Kentucky. — Wilson v. Popham, 91 
 Ky. 327, 15 S. W. 859; Cora. v. Roe,. 
 129 Ky. 650, 112 S. W. 683, 19 L.R.A., 
 (N.S.) 413. 
 
 Massachusetts. — Boston Bar Assoc. 
 V. Casey, 196 Mass. 100, 81 N. E. 892. 
 
 Minnesota. — In re Temple, 33 Minn.. 
 343, 23 N. W. 463; Southworth v.. 
 •Bearnes, 88 Minn. 31, 92 N. W. 406; 
 In re No^tny, 142 N. W. 733. 
 
 Montana. — State v. Baum, 14 Mont. 
 12, 35 Pac. 108; In re Thresher, 33 
 Mont. 441, 8 Ann Cas. 845, 84 Pac. 
 876, 114 Am. St. Rep. 834. 
 
 New Hampshire. — In re Allen, 75- 
 N. H. 301, 73 Atl. 804. 
 
 New Jersey. — In re McDermit, 63 
 N. J. L. 476, 43 Atl. 685; In re 
 Young, 75 N. J. L. 83, 67 Atl. 717; In 
 re Bedle, 87 Atl. 100. 
 
 New York. — In re Bleakley, 5 Paige- 
 311 ; In re Titus, 6G Hun 632 mem., 
 21 N. Y. S. 724; In re Stern, 120 App. 
 Div. 375, 105 N. Y. S. 199; In re 
 Cohn, 120 App. Div. 378, 105 N. Y. 
 S. 84; New York Bar Assoc, v. Chap- 
 pell, 131 App. Div. 69, 115 N. Y. S. 
 808; In re Rosenthal, 137 App. Div. 
 772, 122 N. Y. S. 471; In re Feucht- 
 wanger, 139 App. Div. 36, 123 N. Y. 
 S. 798; In re Rockmore, 133 App.. 
 
§ 805] 
 
 GROUNDS FOK DISBARMENT. 
 
 1219 
 
 It is the fact of the wrongful retention or misappropriation of the 
 client's funds, and not the amount thereof, which works the dis- 
 barment ; *^ and it has been held that there is no presumption of 
 innocence on the part of the attorney, and that unless he fairly and 
 in detail explains the transaction wherein a retention or misappro- 
 priation of funds is charged, it will be presumed that he is unable 
 to do so.** Misconduct of the character under consideration may, 
 of course, be joined with other misconduct as a ground for 
 disbarment.** 
 
 § 805. Application of Rule. — Thus, in accordance with the 
 principles stated in the preceding section, an attorney may be dis- 
 barred where.he disobeys an order of court which requires him to 
 pay over money withheld from his client.*' So, disbarment may 
 result where an attorney withdraws money of his client which is 
 deposited in court and appropriates the same to his own use,*' or 
 where he wrongfully retains his client's money by means of false 
 representations/'' or fraud or deceit.*' It is equally reprehensible 
 
 Div. 71, 123 N. y. S. 928; In re Iron- 
 side, 143 App. Div. 921, 128 N. Y. S. 
 125; In re Steclcler, 146 App. Div. 
 827, 131 N". Y. S. 766; In re Schwarz- 
 kopf, 146 App. Div. 930, 131 N. Y. S. 
 385; In re Smith, 148 App. Div. 291, 
 132 N. Y. S. 304; In re BucWer, 155 
 App. Div. 246, 140 N. Y. S. 324. 
 
 North Dakota. — In re Simpson, 9 
 N. D. 370, 83 N. W. 541. 
 
 Ohio.— State v. Hand, 9 Ohio 42. 
 
 Pennsylvania. — See Aahton Disbar- 
 ment, 4 Pa. Dist. Ct. 425. 
 
 South Carolina. — In re Evans, 94 
 S. C. 414, 78 S. E. 227. 
 
 Tennessee. — State v, Davis, 92 
 Tenn. 634, 23 S. W. 59. 
 
 Wisconsin. — In re , 73 Wis. 
 
 602, 42 N. W. 221. 
 
 Canada. — Hands v. Upper Canaca 
 Law Soc, 16 Ont. 625, affirmed 17 Ont. 
 App. 41; In re Forbes, 2 N. W. Ter. 
 410. 
 
 12 In re Sayer, 146 App. Div. 928, 
 131 N. Y. S. 381. See also Matter of 
 Stern, 120 App. Div. 375, 105 N. Y. S. 
 199. 
 
 13 People V. Webster, 28 Colo. 223, 
 64 Pac. 207. 
 
 14 Matter of Titus, 66 Hun 632 
 mem., 21 N. Y. S. 724. See also the 
 following section. 
 
 16 Jeffries v. Laurie, 23 Fed. 786; 
 In re Burris, 101 Cal. 624, 36 Pac. 
 101; People c. Salomon, 184 111. 490, 
 56 N. E. 815. See also supra, § 804. 
 
 16 In re Thresher, 33 Mont. 441, & 
 Ann. Cas. 845, 84 Pac. 876, 114 Am. 
 St. Rep. 834. 
 
 17 Matter of Wilson, 79 Kan. 674, IT 
 Ann. Cas. 690, 100 Pac. 635, 21 L.R.A.^ 
 (N.S.) 517. See also supra, § 797. 
 
 18 In re Tyler, 71 Cal. 353, 12 Pac. 
 289, 13 Pac. 169. See also supra, 
 § 796. 
 
 Fault of Attorney's Clerk. — While 
 
1220 
 
 GROUNDS FOE DISBARMENT. 
 
 [§ 805 
 
 for an attorney to appropriate to his own use money given to him 
 for the purpose of instituting litigation,^' or for any other specific 
 purpose.^" Disbarment may also result where an attorney negoti- 
 ates notes of his client which were left with him for safe keeping, 
 or converts his client's bond,^ or obtains money by means of for- 
 gery ^ or embezzlement.' Nor will a misappropriation of a client's 
 funds be any the less unprofessional because the attorney was au- 
 thorized to indorse, in the name of his client, a check received 
 therefor.* So, an attorney may be disbarred where, without his 
 client's knowledge, he lends the client's funds to a third person for 
 his own benefit,' or uses his client's credit for the benefit of others.® 
 It will be understood, of course, that the mere misappropriation of 
 the client's funds, or the failure or neglect to pay them over to the 
 client, may, of itself, be a sufiicient ground for disbarment, even 
 though unaccompanied by any other misconduct.'' Failure of an 
 attorney for an estate, notwithstanding frequent demands, to pay 
 to the referee and stenographer on the accounting of the executors 
 
 an attorney should not be disbarred 
 on account of the misappropriation 
 of money if the money was taken by 
 his clerk, to whom he had entrusted 
 it, in good faith, to apply to the 
 client's use (In re Rockmore, 130 
 App. Div. 586, 117 N. Y. S. 512), yet 
 an effort of the attorney, by false 
 testimony, to charge his own embezzle- 
 ment upon his clerk, is itself an of- 
 fense which warrants his disbarment 
 <In re Eockmore, 139 App. Div. 71, 
 123 N. Y. S. 928). 
 
 19 People V. Hays, 28 Colo. 82, 62 
 Pac. 832; In re Bedle, (N. J.) 87 Atl. 
 100 ; Matter of Voxman, ] 48 App. Div. 
 286, 132 N. Y. S. 217. 
 
 20 In re Titus, 66 Hun 632 mem., 
 21 N. Y. S. 724; State v. Cadwell, 36 
 Mont. 119, 40 Pac. 176. See also In 
 re Temple, 33 Minn. 343, 23 N. W. 
 463. 
 
 lln re Davies, 93 Pa. St. 116, 39 
 Am. Rep. 729. 
 
 But where an attorney was given 
 jewelry as a pledge for his fees, and 
 the pledgee foreclosed, it was held 
 that the attorney would not be dis- 
 barred merely because, on the payment 
 of the amount due him by the client, 
 he was unable to redeem the pledge. 
 People V. Humbert, 51 Colo. 60, 117 
 Pac. 139. 
 
 2 People V. Walkey, 26 Colo. 483, 58 
 Pac. 591; In re Rosenthal, 137 App. 
 Div. 772, 122 N. Y. S. 471. See also 
 Kennedy's Disbarment, 178 Pa. St. 
 232, 35 Atl. 995. 
 
 3 In re Rosenthal, 137 App. Div. 
 772, 122 N. Y. S. 471. 
 
 4 In re Evans, 94 S. C. 414, 78 S. E. 
 227. 
 
 5 In re Simpson, 9 N. D. 379, 83 N. 
 W. 541. 
 
 6 See In re Temple, 33 Minn. 343, 
 23 N. W. 463. 
 
 ' See tlie cases cited at the first 
 note of the preceding section. 
 
§§ 806, 807] GEOUBTDS FOR DISBAEMENT. 1221 
 
 the amounts allowed them by the decree, and -which the executor 
 had given him to pay to them, in the absence of any charge that he 
 actually appropriated the money to his own use, is not, however, 
 such professional misconduct as to require the court to proceed 
 further than to express disapproval of his act.' 
 
 § 806. Misappropriation by Partner. — While it is well set- 
 tled that every member of a law firm is individually liable in a civil 
 action for the acts of any of the partners within the scope of their 
 authority as such,^ nevertheless the fact that one partner has col- 
 lected and retained, or misappropriated, funds belonging to a client 
 of the firm, will not warrant the disbarment of any of the part- 
 ners who had no knowledge of such wrongdoing.*" But where a 
 firm of attorneys falsely informed their client that they had not 
 collected an account placed with them for collection, it is imma- 
 terial, in proceedings for their disbarment for withholding such 
 funds, whether the misappropriation was effected by one or both 
 of them, or whether the funds were used for partnership or per- 
 sonal expenses.** 
 
 § 807. In Professional Capacity. — As a general rule, it is 
 held that if an attorney at law converts, or otherwise misappropri- 
 ates, money intrusted to him in another capacity, he will be dis- 
 barred on the ground that he no longer possesses the qualifications 
 required in members of the bar.** Thus, an attorney has been dis- 
 barred for the misappropriation of funds received by him as a tax 
 
 8 In re Henderson, 146 App. Div. 543, 9 B. & S. 481, 37 L. J. Q. B. 
 944, 131 N. y. S. 544. 295, 18 L. T. N. S. 564; Matter of 
 
 9 See supra, § 292. Blake, 3 El. & El. 40, 107 E. C. L. 
 
 10 In re Luce, 83 Cal. 303, 23 Pac. 40; In re O'Reilly, 1 U. C. Q. B. 392, 
 350; Klingensmlth v. Kepler, 41 Ind. 2 Ont. Pr. 198; Hands v. Upper Can- 
 341 ; Kepler v. Klingensmith, 50 Ind. ada Law Soc, 16 Ont. 625 ; People v. 
 434; Porter v. Vance, 14 Lea (Tenn.) Esaington, 32 Colo. 168, 75 Pac. 394; 
 629; Re McCaughey, 3 Ont. 425; Re Matter of Wilson, 79 Kan. 674, 17 
 Koss, 16 Ont. Pr. 482; Re Harris, 3 Ann. Gas. 690, 100 Pae. 635; New 
 N. W. Ter. 70. York Bar Assoc, v. Chappell, 131 App. 
 
 n People V. Betts, 26 Colo. 521, 58 Div. 69, 115 N. Y. S. 868; Matter of 
 
 Pac. 1091. Alexander, 137 App. Div. 770, 122 N. 
 
 12 Re Hill, L. R; 3 Q. B. (Eng.) Y. S. 479. And see also infra, § 840. 
 
1222 GEOUNDS FOE DISBARMENT. [§ 808 
 
 collector," or as a trustee,'* guardian," or bailee.'^ So, where an 
 attorney was taken sick and arranged with another lawyer to act 
 as his substitute for a fixed compensation, it was held that such 
 substitute was acting in his professional capacity in receiving a 
 check payable to the original attorney in settlement of the litiga- 
 tion, and might be disbarred for the forgery thereof and conver- 
 sion of the proceeds to his own use." But in one case, where it ap- 
 peared that an attorney accepted a trust as an individual, and not 
 as attorney, and that he niortgaged and sold the trust property and 
 appropriated the proceeds thereof, it was held that, while he de- 
 served censure, he was not liable to disbarment. '' 
 
 § 808. Necessity of Demanding Payment. — The mere fact 
 that an attorney has received money for his client and failed to 
 pay it over, is not, in itself, a sufficient ground for disbarment.'^ 
 It should first appear that the sum alleged to be due has been de- 
 manded by the client, and that the attorney failed to pay it over 
 upon such demand, or within a reasonable time thereafter ; and, in 
 some states, a demand for payment is required by statute.^" Biit 
 it has been held that a demand is unnecessary where an attorney 
 falsely represents to his client that no collection has been made.' 
 
 13 Delano's Case, 58 N. H. 5, 42 20 Colorado. — ^People u. Keegan, 30 
 Am. Eep. 555. Colo. 71, 69 Pac. 524. 
 
 14 In re Hoffecker, (Del.) 60 Atl. Illinois. — People v. Palmer, 61 111. 
 981. 255. 
 
 15 In re Swadener, 5 Ohio Dec. 598, Kentucky. — Wilson v. Popham, 91 
 2 Ohio Leg. N. 478. Ky. 327, 15 S. W. 859; Com. i. Roe, 
 
 16 In re , 73 Wis. 602, 42 N. 129 Ky. 650, 112 S. W. 683, 19 L.R.A. 
 
 W. 221. (N.S.) 413. 
 
 17 In re Lash, 150 App. Div. 467, Montana. — State i'. Baum, 14 Mont. 
 135 N. Y. S. 370. 12, 35 Pac. 108. 
 
 18 People V. Appleton, 105 111. 474, New York. — ^New York Bar Assoc. 
 44 Am. Kep. 812; but see dissenting i\ Chappell, 131 App. Div. 69, 115 N. 
 opinion of Mulkey, J., in the same Y. S. 868. 
 
 case. And see also supra, § 346, as to 
 
 19 Guilford v. Sims, 13 C. B. 370, the necessity of making a demand 
 76 E. C. L. 370; Re Campbell, 32 prior to the bringing of a civil suit 
 U. C. Q. B. 444; Re J. B., An Altor- for the recovery of the sum withheld, 
 ney, 6 Manitoba 19; People r. Broth- l People r. Keegan, 30 Colo. 71. 69 
 crson, 36 Barb. (N.Y.) 602; In re Pac. 524. 
 
 Veeder, 11 N. M. 43, 60 Pac. 545. Compare People v. Robinson, 32 
 
■§ SOD] GEOUNDS FOE DISBAEMENT, 1223 
 
 So, where a client repeatedly calls on her attorney for lier money, 
 and he knows the purpose of such calls at the time they are made, 
 there is a sufficient demand, as it is not necessary, unless expressly 
 required by statute, that there should be any formal or v/ritten 
 demand.* 
 
 § 809. Recovery of Judgment for Amount Due. — It is not 
 
 necessary, as a general rule, to recover judgment against an attor- 
 ney, for a sum alleged to be wrongfully withheld by him, prior to 
 the institution of disbarment proceedings because of his failure to 
 pay such sum over to his client.' But disbarment will not be pre- 
 vented because such a judgment has been recovered,* or because of 
 a pending suit wherein such a recovery is sought ; * nor can an 
 attorney defend as against a rule to show cause why he should not 
 be suspended for failure to pay over money due his client, by al- 
 leging that he has appealed from a judgment rendered against 
 him in an action brought by the client therefor ; ^ but it has been 
 held that the taking of an appeal from an order directing an attor- 
 ney to pay a certain sum of money over to his client, and the giv- 
 ing of a supersedeas bond therefor, will prevent the entry of an 
 order for disbarment pending the appeal.'' In California, however, 
 
 Colo. 241, 75 Pac. 922, wherein it was Ch. (U. C.) 413, wherein it was held 
 
 held that it was not ground for dis- that a client waived his right to a 
 
 barment for an attorney to state to summary application for an order to 
 
 his client that nothing had been col- compel a solicitor to repay moneys 
 
 lected on a, certain claim, where the or, in the alternative, to be stricken 
 
 amount of the collection was the min- from the rolls, by treating the claim 
 
 imum collection charge. as a debt from the solicitor to him- 
 
 8 People V. Keegan, 30 Colo. 71, 69 self and thereupon bringing an action 
 
 Pac. 524. and recovering a judgment, thus 
 
 3 State V. Davis, 92 Tenn. 634, 23 changing the status of the solicitor 
 S. W. 59. from that of attorney to that of 
 
 4 People r. Allen, 244 III. 393, 91 judgment debtor; and although on 
 N. E. 463. See also People v. John, execution but a portion of the debt 
 212 111. 615, 72 N. E. 789. was recovered, yet the client, having 
 
 5 Hands r. Upper Canada Law Soc, chosen his remedy, could not resort 
 16 Ont. 625. See also Ex p. A. B., to an application to strike from the 
 attorney, 4 Jur. (Eng.) 630; Matter rolls. 
 
 of Wright, 12 C. B. N. S. 705, 104 E. BMcMath i: Manns Eros. Boot, 
 
 C. L. 705. etc., Co., (Ky.) 15 S. W. 879. 
 
 Compare Re Fletcher, 28 Grant. THendrick v. Posey, 104 Ky. 8, 45 
 
1224 GEOTJBTDS JfOE DISBAEMENT. [§ 810 
 
 it has been held that an application to disbar a lawyer for appro- 
 priating funds collected by him will not be entertained until the- 
 truth of the matter has been settled in a criminal prosecution, or 
 in an action to recover the money.* 
 
 § 810. Defenses Generally. — It has been said that no cir- 
 cumstances in which an attorney may be placed will warrant him 
 in appropriating to his personal use the funds of his client, or jus- 
 tify hini in falsely stating that such funds are not in his hands.*" 
 Thus, where a respondent alleged that the retention of his client's- 
 money was caused by alcoholism, and it appeared that during the 
 time in question he occupied the offices of district attorney and 
 county attorney, and was engaged in the general practice of the 
 law, the court refused to consider the excuse given, even as a miti- 
 gating circumstance.^" So, where a respondent set up a plea of 
 insanity, and it further appeared that he was found not guilty, on 
 the ground of insanity, of a criminal charge predicated on the 
 same defalcation, and was committed to a hospital for the insane, 
 from which he was subsequently discharged as cured, an order of 
 disbarment was allowed to stand, the court being of the opinion 
 that the proof of insanity was of a weak and unsatisfactory na- 
 ture.*^ An attorney is also censurable for failing to pay over to 
 his client such money as may be due him, as soon as he learns that 
 it belongs to the client, and it is immaterial that he did not know 
 to whom the money belonged when he first received it.^* On the 
 other hand, it has been held that the deposit by an attorney of his 
 
 S. W. 525, 46 S. W. 702, 20 Ky. L. said that an attorney who has mis- 
 Rep. 359. applied moneys collected, and has 
 
 8 In re Wyatt, 102 Cal. 264, 36 otherwise been guilty of misconduct, 
 Pac. 586; In re Lowenthal, (Cal.) and his wrongdoing has been caused 
 37 Pac. 526. by habits of intemperance, will be 
 
 9 People V. Betts, 26 Colo. 521, 58 suspended from practice indefinitely, 
 Pac. 1091. See also People v. Selig, with the privilege of moving, after 
 25 Colo. 505, 55 Pac. 722; People v. two years, on satisfactory proof of 
 Pattison, 241 111. 89, 89 N. E. 254; reformation, for reinstatement. 
 
 In re , 73 Wis. 602, 42 N. W. "Kennedy's Disbarment, 178 Pa. 
 
 221. St. 232, 35 Atl. 995. 
 
 10 People V. Webster, 31 Colo. 43, 71 12 In re Fox, 150 App. Div. 602, 
 Pac. 1116. But see In re Evans, 94 S. 135 N. Y. S. 821. 
 
 C. 414, 78 S. E. 227, wherein it was 
 
§ 811] GEOUNDS FOE DISBAEMENT. 1225 
 
 client's money in his own name, and taking it out for his own use, 
 though able to replace it at any time, is not such fraudulent con- 
 duct as to furnish ground for disbarment.'* I^or will an attorney 
 be disbarred merely because he fails properly to report collections, 
 and to keep adequate books of account, and is careless in the trans- 
 action of his business with his client.''* Where an attorney used a 
 claim given to him for collection as a set-off against his personal 
 indebtedness to the debtor, the fact that the client thereafter treated 
 the attorney as the debtor is no defense.'' Laches in the institu- 
 tion of the disbarment proceedings is also usually considered as a 
 defense thereto.'® 
 
 § 811. Client's Indebtedness to Attorney. — It has been 
 held that the retention of money by an attorney is not ground for 
 disbarment where the client is indebted to the attorney in an 
 amount equal to, or in excess of, the sum withheld.''' Nor will 
 an attorney be disbarred because of his having applied money, re- 
 ceived by him from his client for the purpose of paying premiums 
 on certain insurance policies, toward the payment of fees due him- 
 self." ISTor will disbarment be ordered because an attorney owes 
 his client a balance on an account growing out of the professional 
 relations between them, where such balance is the subject of a hotia 
 fide dispute, and it clearly appears that there has been no fraud 
 or deception.'® But it is improper for an attorney to retain his 
 client's funds because of an indebtedness owing by the client to a 
 
 "In re Duncan, 64 S. C. 40], 42 Ky. L. Eep. 407; In re Thresher, 29 
 
 S. E. 433. See also People v. Hum- Mont. 11, 73 Pac. 1109. 
 
 bert, 51 Colo. 60, 117 Pac. 139. 18 In re Sheehan, 141 App. Div. 510, 
 
 14 In re Robertson, 28 S. D. 70, 126 N. Y. S. 200. 
 
 132 N. W. 684, 36 L.E.A.(N.S.) 442. 19 People v. Robinson, 32 Colo. 241, 
 
 15 In re Aldrich, (Vt.) 86 Atl. 801. 75 Pae. 922. See also Hamel v. 
 
 16 See infra, § 880. And see also People, 97 111. App. 527; Butchers' 
 People V. Allison, 68 111. 151; Wilson Union Slaughter-House & Live-Stock 
 I). Popham, 91 Ky. 327, 15 S. W. 859; Landing Co. v. Crescent City Live 
 In re Lentz, 65 N. J. L. 134, 40 Atl. Stock Landing & Slaughter-House Co., 
 761, 50 L.R.A. 415; In re Henderson, 41 La. Ann. 355, 6 So. 508; South- 
 146 App. Div. 944, 131 N. Y. S. 544. worth v. Bearnes, 88 Minn. 31, 92 N. 
 
 17 Com. V. McKay, 20 S. W. 276, 14 W. 460. 
 
1226 GllOUNDS FOE DISBARMENT. [§ 812 
 
 third person ; ^^ and it is an aggravation of the original offense for 
 an attorney to claim falsely that his client is indebted to him.* 
 
 § 812. Payment. — The payment of the amonnt due with rea- 
 sonable promptness would, of course, constitute a defense to dis- 
 barment proceedings based upon nonpayment, but it is seldom, if 
 ever, that such proceedings will be commenced where payment has 
 been so made. Where a married woman caused disbarment pro- 
 ceedings to be instituted because of her attorney's failure to pay 
 over to her the proceeds of notes placed in the attorney's hands for 
 collection, it was held that disbarment would not be ordered on a 
 showing to the effect that the relator's husband sold and delivered 
 the notes in question to the attorney for an adequate consideration, 
 under circumstances indicating knowledge and consent on the part 
 of the relator.* So, where it appeared that an attorney had, in 
 fact, wrongfully appropriated a client's money to his own use, but 
 that such misappropriation was made with no actual intent to de- 
 fraud, and with the expectation of paying the money over as soon 
 as it was required, and that both the principal and interest were 
 paid, not as soon as required, but before the disbarment proceed- 
 ings were instituted, and it further appeared that the attorney had 
 since conducted himself with integrity, it was held that the cir- 
 cumstances were not sufficient to warrant disbarment.^ It is cer- 
 tain, however, that the mere fact that money which was wrongfully 
 withheld or misappropriated has been repaid, does not, of itself, 
 operate so as to preclude disbarment proceedings; and if it is 
 shown, in connection with such wrongful detention or misappro- 
 priation, that the attorney acted in bad faith toward his client, 
 or that the wrong was committed or aided by means of false rep- 
 resentations, fraud, deceit, or crime, disbarment may be ordered 
 notwithstanding such payment.* Thus, where it appeared that a 
 
 20 In re Washington, 82 Kan. 829, dictum in People v. Selig, 25 Colo. 
 
 109 Pac. 700. 505, 55 Pao. 722. 
 
 llnreO , 73 Wis. 602, 42 N. W. * People v. Chamberlain, 242 111. 
 
 221. 260, 89 N. E. 994; Matter of Prin- 
 
 2 People V. Anderson, 21 Colo. 271, stein, 142 App. Div. 807, 127 N. Y. S. 
 40 Pac' 568. 629; Matter of Pascal, 148 App. Div. 
 
 3 In re Lentz, 65 N. J. L. 134, 46 830, 131 N. Y. S. 823; Matter of 
 Atl. 761, 50 L.E.A. 415. See also Smith, 148 App. Div. 291, 132 N. Y. 
 
§ 813] 
 
 GKOUNDS FOE DISBARMENT. 
 
 1227 
 
 respondent's friends restored a sum misappropriated by him, he 
 was, nevertheless, disbarred, and it was said that such payment 
 did not remove the doubt as to his future integrity.' So, it has 
 been held that a repayment of the larger part of a sum misappro- 
 priated by an attorney, is no defense to a proceeding for his dis- 
 barment.® Indeed, it is a serious misconduct for an attorney to 
 apply his client's money to his own use, irrespective of how able 
 he may be to repay such sum on demand.'' 
 
 § 813. Payment after Institution of Proceedings. — The 
 
 payment of money wrongfully retained or misappropriated by an 
 attorney after the commencement of disbarment proceedings, can- 
 not be set up as a defense therein ; ' and this is especially true 
 where the wrongdoing is accompanied by aggravated circum- 
 stances, as, for instance, the commission of a crime.* Nor can a 
 client, with whom a settlement has been made, withdraw the 
 charges against his attorney, and thereby prevent a hearing in the 
 disbarment proceedings.'" But where an attorney's failure to pay 
 
 S. 304; Matter of Levine, 148 App. 
 Div. 296, 132 N. Y. S. 124. See also 
 In re Radford, 168 Mich. 474, 134 N. 
 W. 472. 
 
 ' 6 In re Allen, 75 N. H. 301, 73 Atl. 
 804. 
 
 6 People V. Waldron, 28 Colo. 249, 
 €4 Pac. 186 ; Matter of Shamrotli, 148 
 App. Div. 828, 133 N. Y. S. 514. See 
 also In re Swadener, 5 Ohio Deo. 598. 
 
 7 In re Sayer, 146 App. Div. 928, 131 
 N. Y. S. 381. 
 
 i England.— In re Hill, L. R. 3 Q. 
 B. 543. 
 
 Canada. — Hands v. Upper Canada 
 Law Soc., 16 Ont. 625. 
 
 Colorado. — Ex p. Browne, 2 Colo. 
 553 ; People v. Ryalls, 8 Colo. 332, 7 
 Pac. 290; People v. Selig, 25 Colo. 505, 
 55 Pac. 722; People r. Keegan, 30 
 Colo. 71, 69 Pac. 524; People v. Web- 
 ster, 31 Colo. 43, 71 Pac. 1116. 
 
 Illinois. — People v. Chamberlin, 242 
 111. 260, 89 N. E. 994. 
 
 Kentucky. — Com. v. Roe, 129 Ky. 
 650, 112 S. W. 683, 19 L.R.A. ( X.S. ) 
 413. 
 
 Missouri. — In re Z , 89 Mo. App. 
 
 426. 
 
 Sew York. — In re Rockmore, 130 
 App. Div. 586, 117 N. Y. S. 512, 139 
 App. Div. 71, 123 N. Y. S. 928; In re 
 Cohn, 141 App. Div. 511, 126 N. Y. S. 
 218; In re Steckler, 146 App. Div. 
 827, 131 N. Y. S. 766; In re Fox, 150 
 App. Div. 602, 135 N. Y. S. 821. 
 
 Ohio. — In re Swadener, 5 Ohio Dec. 
 598, 2 Ohio Leg. N. 478. 
 
 Pennsylvania. — In re Davies, 93 Pa. 
 St. 116, 39 Am. Rep. 729. 
 
 9 In re Davies, 93 Pa. St. 116, 39 
 Am. Rep. 729. 
 
 ic In re Rockmore, 130 App. Div. 
 586, 117 N. Y. S. 512, 139 App Div. 
 
1228 GEOTJNDS FOE mSBAKMENT. [§§ 814, 815 
 
 over money collected for his client arose from an exaggerated idea 
 of the value of his services, general business inexperience, and 
 want of appreciation of his responsibility as an attorney, it was- 
 held that suspension only would be ordered, subject to reinstate- 
 ment on proof of having paid to the client the sum due him." So,, 
 where an attorney was seventy-one years of age, and was seriously 
 ill during the time an amount due his client remained unpaid,, 
 and such payment was made after the commencement of proceed- 
 ings for disbarment, a severe reprimand was deemed to be a sufE- 
 cient discipline.^^ 
 
 § 814. Attachment of Funds. — The funds of a client may, 
 of course, be attached in an attorney's hands,*' necessitating their 
 retention. So, where money was paid to an attorney by a hus- 
 band, for the purpose of being paid over to the wife as alimony,, 
 and the attorney deposited the same in a bank in his own name, 
 whereupon it was attached, it was held that, although the respond- 
 ent should not have deposited the money so received in his own 
 name, nevertheless, disbarment would not be ordered where there- 
 was no false representation, fraud or deceit, in connection with 
 the transaction.** 
 
 § 815. Inexperience. — Inexperience is not, of course, strict- 
 ly speaking, a defense for the wrongful retention of a client's- 
 funds. "Even an inexperienced person, at the time of admission 
 as a member of the legal profession, ought to know it is wrong to 
 appropriate to his own use moneys belonging to others." *' But 
 it is customary, in cases of the character under consideration, to- 
 make allowances for inexperienced practitioners ; *® thus, where a 
 charge of unlawfully retaining the funds of a client is not accom- 
 
 71, 123 N. Y. S. 928. See also In re 14 People v. Humbert, 51 Colo. 60, 
 
 Martin, 6 Beav. (Eng.) 340; Honan 117 Pac. 139. 
 
 V. Montreal Bar, 30 Can. Sup. Ct. 1. 16 People v. Waldron, 28 Colo. 249, 
 
 llCharapagne v. Benoit, (R. I.) 78 64 Pac. 186. See also Matter of 
 
 Atl. 1009. Cohen, 120 App. Div. 378, 105 N. Y. S. 
 
 12 In re Tracy, 150 App. Div. 913, 84. 
 
 135 N. Y. S. 29. 18 Champagne v. Benoit, (R. I.) 7» 
 
 13 See supra, § 301. Atl. 1009. 
 
§ SIG] GEOUNDS FOE DISBAEMENT. 1229 
 
 panied by any unusual state of facts, or aggravating circumstances, 
 but is apparently due to insolvency, and there are no charges of 
 other misconduct, a temporary suspension will, as a rule, be 
 deemed a sufficient discipline." 
 
 Perverting or Obstructing Justice. 
 
 § 816. Generally. — It is the duty of the court to condemn 
 such conduct in an attorney as may tend to impair or defeat the 
 due administration of justice, or the usefulness of the bar, and to 
 protect the state and the public from lawyers who abuse their 
 privileges by imposing either upon their clients or upon the 
 court. ^' So, under the accepted code of legal ethics, it is the duty 
 of lawyers to aid the court, in the causes in which they appear, 
 in arriving at a proper determination of the law and the facts; 
 theoretically, at least, it is counsel's first duty to see that the issue 
 is justly decided, however his client may be affected thereby.*' 
 And if, by any act of commission or omission, an attorney deceives 
 the court, and so obstructs or pollutes the administration of jus- 
 tice, or, by the suppression of truth, obtains a result not warrant- 
 ed by law, he is guilty of malpractice, and unworthy of the privi- 
 leges which the law confers upon him.'" Thus, where facts within 
 the knowledge of an attorney for a corporation presents a condition 
 showing that his subordinates are spending money for the purpose 
 of inducing false evidence in courts of justice, it is his duty to do 
 all within his power to discourage such practices, and his failure 
 to do so merits disbarment.' And where an attorney has been 
 convicted of obstructing the due administration of justice in viola- 
 tion of a federal statute, he may be disciplined therefor by the 
 state court, notwithstanding a recommendation by the federal 
 judge that clemency be extended.* 
 
 "In re Grcenberg, 146 App. Div. Ann. Cas. 1913D 1156, 142 S. W. 194; 
 
 945, 131 N. y. S. 531; In re Lash, 150 In re Eldridge, 82 N. Y. 161, 37 Am. 
 
 App. Div. 467, 135 N. Y. S. 370; In Rep. 558. (See also mem. in 2 Ky. 
 
 re Buehler, 155 App. Div. 246, 140 L. Rep. 75.) 
 N. Y. S. 324. 1 In re Robinson, 151 App. Div. 589, 
 
 18 In re Flannery, 150 App. Div. 369, 136 N. Y. S. 548. 
 
 135 N. Y. S. 612. « In re Robinson, 140 App. Diy. 329, 
 
 19 In re Thatcher, 190 Fed. 969. 125 N. Y. S. 193. 
 
 20 Wernimont v. State, 101 Arlc. 210, 
 
1230 GKOUNDS rOK DISBAKMENT. [§ 817 
 
 § 817. Abuse of Authority or Legal Process. — It is mis- 
 conduct for an attorney to abuse the authority vested in him by 
 virtue of his o£Bce, or to exercise such authority so as to bring 
 about an abuse, or to aid in the abuse, of legal process.* Thus, an 
 attorney may be disbarred where he directs the sheriff, in the exe- 
 cution of a writ of replevin, to take from the defendant's posses- 
 sion goods not described in the writ.* So, the suing out of a writ 
 of replevin to enforce the collection of a debt which has been paid, 
 will constitute ground for disbarment.* And an attorney who 
 makes use of criminal procedure to enforce the collection of his 
 client's claims is not only liable in a civil action therefor,* but he 
 may be disbarred where the circumstances warrant such action.'' 
 So, an attorney who resorts to subterfuge for the purpose of se- 
 curing jurisdiction over nonresidents, so as to compel them to com- 
 promise litigation, is guilty of a fraud upon the court for which 
 he may be disbarred.' And where an attorney, because he was 
 unable to collect his fees for services rendered in preventing the 
 cancellation of a homestead claim, instigated another contest 
 against his former client based largely on the same facts, and ap- 
 peared for the contestant therein, and testified against such for- 
 mer client as to privileged communications, he was disbarred.* It 
 is also reprehensible practice, and may be ground for disbarment, 
 for an attorney to use letters written to his client by another for 
 the purpose of compelling a settlement; and if such conduct is 
 coupled with an attempt to extort from such other person more 
 than is justly due, ground for disbarment does exist." So, an 
 attorney may be disbarred for filing a sham petition for the pur- 
 pose of taking a deposition so as to enable him to publish the tes- 
 
 3 Wernimont v. State, 101 Ark. 210, 8 See supra, § 296. 
 
 Ann. Cas. 1913D 1156, 142 S. W. 194; T State v. Kolirig, (la.) 139 N. W. 
 
 In re O'Connell, 174 Mass. 253, 53 908. 
 
 N. E. 1001, 54 N. E. 558. 8 Wernimont v. State, 101 Ark. 210, 
 
 *In re Goldberg, 49 App. Div. 357, Ann. Cas. 1913D 1156, 142 S. W. 194. 
 
 63 N. Y. S. 392. 9 In re , 73 Wis. 602, 42 N. W. 
 
 As to an attorney's liability for the 221. 
 
 unlawful seizure of property, see 10 In re Harrington, 146 App. Div. 
 
 supra, § 297. 219, 130 N. Y. S. 920, denifing rehear- 
 
 6 In re Wartman, (N. J.) 31 Atl. infi 140 App. Div. 939, 125 N. Y. S. 
 
 1040. 1123. 
 
§ 818] QEOUNDS FOE DISBAEMENT. 1231 
 
 timony so taken.'* But, while the encouragement of litigation by 
 an attorney from any but honest motives is misconduct which may 
 be punished by disbarment,'^ it is not unprofessional to sue upon 
 just claims in a lawful manner, irrespective of the consequences, 
 to the defendant." 
 
 § 818. Interference with Witnesses. — ; The first duty of a 
 lawyer is to aid in the administration of justice, the duty to hia 
 client being subordinate thereto ; '* and, therefore, it is evident 
 that a lawyer who in any manner attempts to suppress truth, or to 
 prevent a witness from appearing in court, or who seeks colored 
 or untruthful testimony, is guilty of misconduct for which he may, 
 and should be, disbarred.'' Thus, it has been held that an attor- 
 ney who prevented a girl, on Avhom an abortion had been com- 
 mitted, from making an ante mortem statement, and, in furtlier- 
 ance of his purpose, directed who should care for her, forbade- 
 persons from seeing her, and directed her attendant not to permit 
 her to make any statements concerning herself, her condition, or 
 the cause thereof, was guilty of misconduct for which he might 
 be disbarred.'® So, an attorney may be disbarred where it appears 
 that he encouraged a witness to conceal himself so as to avoid at- 
 tendance in court.''' And where an attorney, who is in charge of 
 the claim department of a corporation, approves vouchers for the 
 disbursements of detectives and investigators for money expended 
 with the witnesses of parties who had brought suits against the 
 company, in keeping such witnesses out of reach of process, pay- 
 ing their hotel bills, and paying the witnesses themselves, and also 
 approves payments made by such agents of the claim depart- 
 ment to court officers, clerks, and attendants, and to police offi- 
 cers, physicians, and hospital employees, he will be disbarred,. 
 
 11 Ex p. Krieger, 7 Mo. App. 367. In re Robinson, 140 App. Div. 329, 125. 
 
 12 State V. Eohrig, (la.) 139 N. W. N. Y. S. 193. 
 
 908. 16 In re Shepard, 109 Mich. 631, 67 
 
 IS Hinckley v. Krug, (Cal.) 34 Pac. N. W. 971. 
 
 118; People v. Robinson, 32 Colo. 241, " Ex p. Burr, 2 Cranch (C. C.) 379, 
 
 75 Pac. 922. 4 Fed. Cas. No. 2,186 ; State Board of 
 
 14 In re Thomas, 36 Fed. 242. Examiners v. Lane, 93 Minn. 425, 101 
 
 IB Bar Assoc, of Boston v. Green- N. W. 613. 
 hood, 168 Mass. 169, 46 N. E. 568; 
 
1232 GBOUNDS FOE DISBAKMEiST. [§ 81& 
 
 especially -where such payments are sufficient in number to show a 
 deliberate system conducing to bribery and subornation of per- 
 jury.^' But every attorney cannot, of course, be imbued with the 
 highest standard of legal ethics, and, indeed, it would be a danger- 
 ous rule were it so required ; ^^ thus, it has been held that an at- 
 torney will not be disbarred merely because he seeks to recover 
 1;he possession of incriminating letters, written by his client, where 
 there is no purpose to suppress evidence which might be relevant 
 in contemplated or pending litigation; but it is otherwise if, in 
 .seeking such letters, the attorney makes threats which, if made 
 with a view of extorting money, would have amounted to black- 
 mail.'" So, where an attorney sent an agent to see a witness for 
 the adverse party, with instructions to endeavor to incline such 
 witness favorably towards his client, and it appeared that the 
 agent, on his own responsibility, made the witness drunk for the 
 purpose of keeping him out of the way, and induced him to see 
 the attorney at the latter's office, it was held that the attorney's 
 misconduct did not warrant disbarment ; but it would be otherwise 
 if he had instructed his agent so to conduct himself, or, perhaps, if 
 he had subsequently ratified such conduct.^ 
 
 § 819. Inducing Witnesses to Swear Falsely. — A lawyer 
 who induces, or attempts to induce, a witness to swear falsely, will 
 be disbarred.' "While a discreet and prudent attorney may very 
 properly ascertain from witnesses in advance of the trial what 
 they in fact do know, and the extent and limitations of their 
 memory, as a guide to his own examinations, he has no right, 
 legal or moral, to go farther. His duty is to extract the facts 
 from the witness, not to pour them into him; to learn what the 
 witness does know, not to teach him what he ought to know." * 
 Thus, where an attorney took out a commission for the examina- 
 
 18 In re Eobinson, 151 App. Div. Ann. Cas. 539, 67 Atl. 497 ; People v. 
 589, 136 N. Y. S. 548. Brown, 218 111. 301, 75 N. E. 907 ; 
 
 19 In re Thomas, 36 Fed. 242. State v. Holding, 1 McCord L. (S. C.) 
 
 20 In re Chadsey, 141 App. Div. 458, 379. 
 
 126 N. Y. S. 456, affirmed 201 N. Y. s !„ re Eldridge, 82 N. Y. 616, 37 
 
 .572, 95 N. E. 1124. Am. Rep. 558. (See also mem. in 2 
 
 lln re Thomas, 36 Fed. 242. Ky. L. Rep. 75.) 
 
 2 In re Durant, 80 Conn. 140, 10 
 
■§ 819] GROUNDS FOE DISBAEMENT. 1233 
 
 tion of a witness, and wrote out the answers, or a part thereof, so 
 as to put his own words and ideas into the mouth of the witness, 
 and produced such testimony in court, he is unfitted to continue 
 as a member of the bar.* Nor can an attorney, who has super- 
 vision of the claim department of a corporation, justify an expen- 
 diture of the company, with his approval, for the purpose of brib- 
 ing witnesses and paying for perjured testimony, by showing that 
 many fraudulent claims have been brought against such company ; 
 nor will his misconduct be excused by showing that criminal re- 
 sponsibility has been avoided.* But where an attorney, believing 
 a certain paper to have been forged, hired an expert to examine 
 it, and, the expert having expressed dou.bt as to the forgery, the 
 attorney, supposing that the expert actually believed the paper to 
 be forged and expressed doubt only for the purpose of extorting 
 money, offered the expert a large sum to testify in regard to the 
 forgery, it was held that, while the attorney's conduct was subject 
 to criticism, it was not ground for disbarment. In so deciding, the 
 court said: "The respondent knew, or thought he did, that the 
 signature was a forgery, and he seems never to have doubted that 
 [the expert] was of the same opinion, and he regarded, as he well 
 might, the occasional arguments of the witness on the other side 
 as mere intimations that he wanted some money. Under such cir- 
 cumstances, no doubt, it would have been more in accordance with 
 exalted ideas of propriety for [the attorney] to have denounced 
 the witness, and dismissed him ; but I doubt whether many prac- 
 titioners would have acted very differently from the course of the 
 respondent. Lawyers meet and are compelled to contend with all 
 sorts of people. They have in their hands the interests of their 
 client, and they should not permit him to lose the benefit of im- 
 portant testimony upon any refined ideas of propriety. Frequent- 
 ly witnesses whose testimony is essential know the value of their 
 position, and too often attempt to realize upon it. It is a trying 
 thing for an attorney to be placed in a situation where he must 
 deal with such a witness ; and, while an honorable attorney would 
 be careful to make no payments or promises which could 
 
 4 In re Eldridge, 82 N. Y. 616, 37 5 In re Robinson, 151 App. Div. 589, 
 
 Am. Rep. 558. (See also mem. in 2 136 N, Y. S. 548. 
 Ky. L. Rep. 75.) 
 
 Attys. at L. Vol. II.— 78. 
 
1234 GROUNDS FOE DISBARMENT. [§ 820 
 
 affect the truthfulness of the evidence, all would try to retain 
 the witness, however much he would be compelled to despise- 
 him. I have considered the matter entirely from the standpoint, 
 of the respondent ; and while I think his conduct, according to his 
 own testimony, may justly be criticised, I do not think it sulHcient 
 ground for a disbarment." ® 
 
 § 820. Improper Contract with Witnesses. — It is serious 
 professional misconduct for an attorney to enter into a con- 
 tract with one whom he expects to call as a witness in a judicial 
 proceeding, whether such person be an expert or not, whereby the 
 compensation of such person for testifying in a particular way is 
 made dependent upon the outcome of the litigation in which he is 
 to testify. Such contracts give a direct encouragement to a wit- 
 ness to shape his testimony according to his interest, and have a. 
 tendency to subvert justice by putting a premium on perjury ; and 
 an attorney who makes a contract of this character is unfit to re- 
 main a member of the bar.' It makes no difference whether the 
 testimony thus procured is true or false, or that the contract was 
 induced by a threat of the witness to testify adversely to the case 
 of the party calling him.' However, witnesses who are called to 
 give testimony involving special knowledge and skill or requiring 
 examination and study of a particular branch of science may 
 properly be given compensation for the time and labor devoted to 
 the matter about which they are to testify ; and it seems that wit- 
 nesses who are in impoverished circumstances may properly be 
 paid for the time actually lost in attending court. Such cases are 
 not within the condemnation of the rule first stated, for the wit- 
 ness does not receive compensation for swearing to a particular 
 state of facts or to a particular opinion, nor is the amount to be 
 paid him dependent upon the result of the litigation.* 
 
 6 In re Barnes, (Cal.) 16 Pae. 896. State v. Clopton, 15 Mo. App. 
 
 1 Matter of Schapiro, 144 App. Div. 589. 
 1, 128 N. Y. S. 852 ; In re Imperatori, 8 Matter of Schapiro, 144 App. Div. 
 
 152 App. Div. 86, 130 N. Y. S. 675. 1, ]28 N. Y. S. 852. 
 ■See also Bar Assoc, of Boston v. Green- 9 Matter of Schapiro, 144 App. Div. 
 
 hood, 168 Mass. 169, 46 N. E. 568; 1, 128 N. Y. S. 852. 
 
§§ 821, 822] GROUNDS FOE DISBAKMENT. 1235 
 
 § 821. Contract with Detective Formerly Employed by 
 Opponent. — It has been held that an attorney is guilty of un- 
 professional conduct in employing, in the interest of his client, a 
 detective, who was formerly employed by the adverse party in the 
 same litigation, to furnish evidence against his former employer. 
 A contract of this character is void as being against public policy, 
 for "no man can serve two masters ;" and an attorney who induces 
 one to attempt to do so, is at least censurable.^" 
 
 § 822. Permitting Client to Present False Testimony. — 
 The fidelity which a lawyer owes to his client must not be allowed 
 to override the duty to deal honorably with the court of which he 
 is an officer, and to inform it on the law and the facts of a case in 
 which he appears; and he violates his oath of ojEce when he re- 
 sorts to deception, or permits his client to do so.^^ Ah attorney is 
 never justified in continuing a case after he has knowledge of the 
 fact that it is being supported by perjured testimony; and if he 
 proceeds with the trial thereafter, without acquainting the court of 
 the fact that the testimony is false, and seeks to recover judgment 
 on such testimony, his misconduct merits his disbarment. ^^ Thus, 
 where an attorney who was employed to prosecute an action for 
 
 10 Murray v. Lizotte, 31 R. I. 509, the trial of a, suit then pending in 
 77 Atl. 231. which the attorney was counsel for 
 
 11 People V. Beattie, 137 111. 553, 27 one of the parties, it was ground for 
 N. E. 1096, 31 Am. St. Rep. 384; disbarment. Rice j;. Com., 18 B. Men. 
 People V. Case, 241 111. 279, 89 N. E. (Ky.) 472. 
 
 638, 25 L.R.A. (N.S.) 578; In re But the mutilation of a memoran- 
 
 Mendelsohn, 150 App. Div. 445, 135 ckmi book, by cutting leaves there- 
 
 N. Y. S. 438. from, is not ground for disbarment 
 
 Alteration of Letter to Be Used in where the leaves were preserved, and 
 
 Evidence. — Where an attorney made no fraudulent intention appears. In 
 
 an alteration in a, copy of a letter re Luce, 83 Cal. 303, 23 Pac. 350. 
 
 with which he had been furnished by 12 In re Hardenbrook, 135 App. Div. 
 
 annexing to the name of the writer 634, 121 N. Y. S. 250, affirmed 199 N. 
 
 the word "Prest.," in order to impart Y. 539, 92 N. E. 1086 ; Matter of 
 
 to the letter an official character, by Schapiro, 144 App. Div. 1, 128 N. Y. 
 
 making it appear that the writer S. 852; Matter of Flannery, 150 App. 
 
 thereof was acting as president of a Div. 369, 135 N. Y. S. 612; Matter of 
 
 bank, and such copy had been pro- Mendelsohn, 150 App. Div. 445, 135 
 
 cured for the purpose of using it on N. Y. S. 438. 
 
1236 GEOUNDS FOE DISBAEMENT. [§ 823 
 
 personal injury on a contingent fee, agreed to pay the physician 
 who attended the plaintiff a certain sum in the event of a recov- 
 ery, and during the trial the physician, in the presence of the at- 
 torney, denied that he had any interest in the case, and the attor- 
 ney remained silent, it was held that the attorney's misconduct 
 warranted disbarment, not only because of his silence, but also for 
 having entered into such a contract/' It is equally unpro- 
 fessional for an attorney, in presenting a claim to the legislature, 
 to support the same by false, forged, or fraudulent evidence." 
 !N"or is it essential, in order that the disciplinary powers of the 
 court may be exercised, that the attorney should be guilty of a vio- 
 lation of the penal laws; but it is sufficient if it appears that he 
 had a direct knowledge of the fact that his client sought to re- 
 cover on perjured testimony, and, notwithstanding such knowl- 
 edge, continued the suit and insisted upon a recovery.^* 
 
 § 823. Presenting False Testimony in Disbarment Pro- 
 ceedings. ■ — The fact that an attorney against whom disbarment 
 proceedings are pending has, at the hearing thereof, presented 
 false testimony in his own behalf to avoid the consequences of his 
 misconduct, is frequently considered, together with the charges 
 proven against him, in determining his guilt,*® and may of itself 
 be sufficient to warrant his disbarment." Thus, the court said in 
 one case: "Whatever would have been the determination of this 
 court if the respondent had frankly admitted his fault, I can see 
 no escape from the conclusion that, when he has deliberately at- 
 tempted to escape the consequences of his misconduct by perjured 
 testimony, he is no longer fit to remain a member of the proles- 
 
 13 In re Scliapiro, 144 App. Div. 1, Spenser, 143 App. Div. 229, 128 N. Y. 
 
 128 N. Y. S. 852. S. 168; In re Voxman, 148 App. Div. 
 
 Instate V. Fisher, 82 Neb. 361, 117 286, 132 N. Y. S. 217; In re Levine, 
 
 N. W. 882, affirmed on rehearing, 82 148 App. Div. 296, 132 N. Y. S. 124. 
 Neb. 367, 119 N. W. 249. 17 In re Rockmore, 139 App. Div. 
 
 IB In re Hardenbroolt, 135 App. Div. 71, 123 N. Y. S. 928, where the at- 
 
 634, 121 N. Y. S. 250. torney sought to charge his own em- 
 
 16 In re Cohn, 120 App. Div. 378, bezzlement upon his clerk, who was 
 
 105 N. Y. S. 84; In re Joseph, 135 not expected to appear at the hearing. 
 App. Div. 589, 120 N. Y. S. 793; In re 
 
§ 824] GROUNDS FOE DISBARMENT. 1237 
 
 sion." ^' And, of course, where testimony of this character is pal- 
 pably false, it is clear that it should be taken into consideration 
 against the respondent; but it would seem that where there is 
 room for doubt — even a reasonable doubt — the fact that the find- 
 ings are adverse to the respondent should not militate against him. 
 "The issue is vital to the party assailed. An adverse decision 
 dooms him always to disgrace, and often to poverty and want. 
 His professional life is full of adversaries. Always in front of 
 him there is an antagonist, sometimes angry and occasionally 
 bitter and venomous. His duties are delicate and responsible, and 
 easily subject to misconstruction. To say that when he denies the 
 charges brought against him he may be tried without the rights 
 and the safeguards which belong to the humblest criminal, would 
 be to adopt a dangerous rule, and one without reason or justifica- 
 tion." The remarks quoted were made in considering the respond- 
 ent's right to a hearing, but they are not inapplicable here.'* 
 
 § 824. Advocating False or Fictitious Claims. — ISTor is it 
 any part of an attorney's duty to lend his professional aid to the 
 establishment of claims which he knows to be false or fictitious,. 
 nor should he advocate such claims in his own behalf.^" Thus an 
 attorney is guilty of misconduct warranting his disbarment when 
 he presents a false complaint and a false account in an action 
 brought by him to recover for services rendered to a client,^ or 
 when he obtains an order extending the time for the service of a 
 complaint on his own afiidavit stating that the plaintiff has a good 
 cause of action, when, in fact, the plaintiff had previously in- 
 formed him that he had no just claim, and directed him to discon- 
 tinue and abandon the action.^ So, an attorney is guilty of gross 
 misconduct where he fails to object, in the interest of his client, 
 to the account of an executor who has neglected to charge himself 
 with an amount due to the estate which he represents, and it is 
 
 18 In re Smith, 148 App. Div. 291, 491, 42 N. Y. S. 268; Serfass's Case, 
 
 132 N. Y. S. 304. 116 Pa. St. 455, 9 Atl. 074. 
 
 win re Eldridge, 82 N. Y. 161, 37 1 Matter of Eyan, 143 N. Y. 528, 38- 
 
 Am. Rep. 558. (See also mem. in 2 N. E. 963. 
 
 Ky. L. Eep. 75.) zin re Hansen, 120 App. Div. 377^ 
 
 80 Matter of V , 10 App. Div. 105 N. Y. S. 159. 
 
1238 GEOUNDS FOE DISBAEMENT. [§ 825 
 
 immaterial that the attorney subsequently threatened, privately, 
 to file such an objection unless the executor paid the amount to 
 his client.' And where an attorney filed answers in support of 
 motions to open, certain defaults, when he knew that the judg- 
 ments therein had been taken on complaints that were true, and 
 that the answers were false, his suspension is justified.* So, an 
 attorney will be disbarred where he advises his client to verify a 
 complaint which the attorney knew to be false, and led the client 
 to suppose that it had been corrected before verification.* But dis- 
 barment will not be ordered merely because the grounds of a mo- 
 tion, presented by an attorney, are not supported by the facts m 
 the case.® 
 
 § 825. Presenting Fictitious Case to Court. — It is pro- 
 fessional misconduct for an attorney, under the guise of sub- 
 mitting an agreed case to the court, to present a fictitious one, for 
 the purpose of obtaining a decision thereon. Such procedure con- 
 stitutes a fraud and imposition. "Courts are constituted to de- 
 cide actual questions existing between parties who are real and 
 who have a real controversy. And the law has carefully hedged 
 about the submission of controversies between parties with such 
 formalities and solemn requirements as will prevent anxious per- 
 sons from improperly resorting to its aid, and at the same time 
 furnish real litigants an easy mode of invoking its authority. A 
 proper regard for the dignity of the court, a just recognition of its 
 relation to the public, and a proper conception of the office of a 
 lawyer, require a due observance of these formalities in order 
 that the court may properly discharge its obligations and fulfil its 
 public function. Otherwise the source of its authority is corrupt- 
 ed, and the administration of justice is brought into contumely 
 and disrepute.'" 
 
 S Bar Assoc, of Boston t'. Greenhood, 6 Fletcher v. Daingerfield, 20 Cal. 
 
 Id8 Mass. 169, 46 N. E. 563. 427. 
 
 4 In re Goodman, 199 N. Y. 143, 92 T Matter of V , 10 App. Div. 491. 
 
 N. E. 211, affirming order, 135 App. 42 N. Y. S. 268. See also Lord r. 
 
 Div. 594, 120'n. Y. S. 801. Veazie, 8 How. 255, 12 U. S. (L. ed.) 
 
 5 People i;. Pearson, 55 Cal. 472. 1069. 
 
:§§ 826, 827] grounds fok disbaement. 1239 
 
 § 826. Making False Statements to Court. — Under no 
 circumstances will an attorney be justified in making false state- 
 ments to the court.' Thus, an attorney has been disbarred for 
 stating, in an action for divorce wherein he appeared for the 
 plaintiif, that he knew that the plaintiff had acquired a residence 
 in the state, when, in fact, such statement was false.® Nor is an 
 .attorney relieved from his obligation to the court to aid it in the 
 ■due administration of justice, by the fact that he becomes the 
 director of a corporation; and he may be disbarred for making 
 false statements, for the purpose of deceiving the court, to the 
 elfect that the books of such corporation could not be produced.'" 
 
 § 827. False Affidavits. — The knowing presentation to the 
 court of false or fictitious affidavits by an attorney constitutes 
 ^■round for disbarment '^ Thus, disbarment may be predicated 
 on the filing of forged affidavits,'^ or on the filing of papers, in the 
 nature of affidavits, falsely purporting to have been sworn to.'* 
 And where an attorney persuades one to appear in the United 
 States land office, and to make oath to an affidavit, falsely person- 
 ating and representing himself to be another, he will be dis- 
 barred." So where, in an action to divorce a second wife, the at- 
 torney for the plaintiff presented depositions of the plaintiff's 
 children that their stepmother had treated them cruelly, after he 
 had, as attorney for the husband in a proceeding to be relieved 
 from the payment of alimony to his first wife, presented the depo- 
 
 8 In re Schleimer, 150 App. Div. In re Zatulove, 156 App. Div. 79, 141 
 507, 135 N. Y. S. 406. See also In re N. Y. S. 75. 
 
 Keegan, 31 Fed. 129. North Dakota. — In re Crum, 7 N. D. 
 
 9 Reno Bar Ass'n v. Secular, 34 Nev. 316, 75 N. W. 257. 
 
 313 123 Pac. 13. Pennsylvania. — In re Shoemaker, 38 
 
 10 In re Robinson, 140 App. Div. "^^ N- C. 414, affirming 5 Pa. Dist. Ct. 
 329, 125 N. Y. S. 193. ^^l, 38 W. N. C. 54. 
 
 u/Jimow.-People v. Pickler, 186 , *°"*'' Carolina.-\u re Duncan, 81 
 
 Ti, P< „-, ^cc -o- ono S. C. 290, 62 S. E. 406. 
 
 111. 64, 57 N. E. 893. ^^ ^^^^^^ ^ p.^^,^^^ ^^^ ^^^ ^^^ ^^ 
 
 Indiana.-Ex p. Walls, 64 Ind. 461 . n. E. 893 ; Ex p. Walls, 6i Ind. 461. 
 
 Minnesota.— In re Arctander, 26 13 gt^te v. Finn, 32 Ore. 519, 52 Pac. 
 
 Minn. 25, 1 N. W. 43. 756, 67 Am. St. Kep. 550. 
 
 Xew York.— In re Doyle, 138 App. 14 In re Badger, 4 Idaho 66, 35 Pac. 
 
 Div. 99, 122 N. Y. S. 1000. And see 839. 
 
1240 GEOUNDS FOE DISBAEMENT. [§ 82S 
 
 sitions of the same children to the effect that their stepmother 
 treated them well, and dwelt harmoniously with her husband, his 
 conduct is a violation of his duty to the court, and, as such, cen- 
 surable.^* Even where an attorney is a party to a pending action, 
 he may be disbarred for the filing of false affidavits and sham an- 
 swers therein.'* And where an affidavit containing false state- 
 ments was subscribed, but not sworn to, by an attorney at law, his 
 conduct, while not amounting to perjury, is nevertheless unpro- 
 fessional, and he may be stricken from the roll therefor." So, 
 an attorney will be reprimanded for his misconduct in making an 
 affidavit for the removal of a cause to the federal court on the 
 ground of local prejudices, where his real reason therefor was to 
 secure an advantage owing to a difference in the holdings of the 
 state court respecting stipulations for attorney's fees.'' But it 
 seems that the mere fact that an attorney has been implicated in 
 the making of a false affidavit, is not ground for disbarment in the 
 absence of proof that such affidavit has been used, or of an at- 
 tempt to use it.'^ An attorney at law who voluntarily makes a 
 false affidavit to be used in a judicial proceeding in which he is not 
 acting as attorney cannot be suspended from practice for that rea- 
 son, since he is absolutely privileged to the same extent as any- 
 other witness from any punishment except a criminal prosecution, 
 for perjury.^" 
 
 § 828. Falsifying and Abstracting Public Records and 
 Papers. — An attorney who, in any manner, alters, or otherwise 
 falsifies, any public record, or paper in the nature thereof, or who- 
 abstracts the same from the files, may be disbarred. It has been 
 so held as to the alteration of the record of a litigation,' and as to- 
 
 16 In re Schleimer, 150 App. Div. zo Beckner v. Com., 126 Ky. 318,. 
 
 507, 135 N. Y. S. 406. 103 S. W. 378, 31 Ky. L. Rep. 708. 
 
 16 In re Bauder, 128 App. Div. 346, As to crimes generally, see infra, 
 
 112 N. Y. S. 761. §§ 853-864. 
 
 Win re Keegan, 31 Fed. 129. l Illinois. — People v. Murphy, 119 
 
 18 In re Breckenridge, 31 Neb. 489, 111. 159, 6 N. E. 488; People v. Hooper, 
 48 N. W. 14!i. 218 111. 313, 75 N. E. 896. 
 
 19 In re Watson, 83 Neb. 211, 119 Mississippi. — Ex p. Brown, 1 How> 
 N. W. 451. 303. 
 
§ 828] 
 
 GEOUNDS FOE DISBAEMENT. 
 
 1241 
 
 the alteration of judgments and decrees,* an order of court/ a re- 
 turn,* affidavits,' memorandum of dismissal,® bill of exceptions,'' 
 an undertaking,' notes of testimony,® a receiver's report,^" a re- 
 corder's receipt,*' and tax lists,'* or the forging of a satisfaction 
 of judgment.'* So, an attorney who forges the name of the reg- 
 ister to a paper purporting to be a copy of an order declaring a 
 marriage void, will be disbarred.'* And where an attorney altered 
 a letter written by one judge to another concerning a matter of 
 official business, he was disbarred." So, an attorney who induces 
 a clerk of the court to antedate the filing of a paper, is guilty of 
 misconduct for which he may be disbarred.'^ It is also ground for 
 disbarment to abstract public records from their proper resting 
 place without permission,''' and it is equally reprehensible for an 
 attorney to secrete such papers after having lawfully received 
 them; and where, in such a case, an attorney admitted the loss of 
 certain papers by a friend, but failed otherwise to account for 
 them, of to give the name of such friend, he was disbarred.'* But 
 
 Missouri. — State v. Mullins, 129 
 Mo. 231, 31 S. W. 744. 
 
 New York.- — Matter of V., 10 App. 
 Div. 491, 42 N. Y. S. 268. 
 
 Oregon. — Whalley v. Tongue, 29 
 Ore. 48, 43 Pac. 717. 
 
 Pennsylvania. — Bristor v. Tasker, 
 135 Pa. St. 110, 19 Atl. 851, 853, 20 
 Am. St. Rep. 853, 26 W. N. C. 40. 
 
 8 State V. Finley, 30 Fla. 325, 11 
 So. 674, 18 L.E.A. 401; State v. Cad- 
 well, 16 Mont. 119, 40 Pac. 176; In 
 re Freerks, 11 N. D. 120, 90 N. W. 265. 
 
 3 People i: Oishei, 20 Misc. 163, 12 
 N. Y. Crim. 362, 45 N. Y. S. 49. 
 
 4 In re Washington, 82 Kan. 829, 
 109 Pac. 700. 
 
 5 People V. Leary, 84 111. 190; In re 
 Washington, 82 Kan. 829, 109 Pac. 
 700; Ex p. Loew, 5 Hun (N. Y.) 462, 
 50 How. Pr. 373. 
 
 6 Ex p. Lundy, 8 Ohio Clr. Dec. Ill, 
 14 Ohio Cir. Ct. 561. 
 
 ■? People V. Moutray, 166 111. 630, 47 
 N. E. 79. 
 
 8 In re Goldberg, 79 Hun 616 mem., 
 29 N. Y. S. 972. 
 
 9 State V. Harber, 129 Mo. 271, 31 
 S. W. 889; Ex p. St. Rayner, (Ore.) 
 70 Pac. 537. 
 
 10 In re Henderson, 88 Tenn. 531, 13 
 S. W. 413. 
 
 11 In re Serf ass, 2 Pa. Co. Ct. 649, 
 116 Pa. St. 455, 9 Atl. 674, 19 W. N. 
 C. 476. 
 
 12 In re Nunn, 73 Minn. 292, 76 N. 
 W. 38. 
 
 13 In re Heymann, 156 App. Div. 73, 
 140 N. Y. S. 1065. 
 
 14 In re Peterson, 3 Paige (N. Y.) 
 510. 
 
 15 Baker v. Com., 10 Bush (Ky.> 
 592. 
 
 16 Howard v. Gulf, C. & S. F. R. Co., 
 (Tex.) 135 S. W. 707. 
 
 "People V. Hooper, 218 111. 313, 75 
 N. E. 896; In re Gates, (Pa.) 2 Atl. 
 214, 17 W. N. C. 142. 
 
 18 state V. Maxwell, 19 Fla. 31. 
 
1242 GKOUNDS FOE DISBARMENT. [§ 829 
 
 whei'e an attorney was charged ■with stealing an indictment from 
 the files, and it appeared that at one time, while the indictment 
 was in his possession, he denied having it, but, on discovering his 
 mistake, he returned it secretly to the files, the court refused to 
 disbar him.^' 
 
 § 829. Offering False or Fictitious Sureties. — An attor- 
 ney who induces, or attempts to induce, or who participates in the 
 inducement of a court to accept a bond or undertaking with false 
 or fictitious sureties, perpetrates a fraud upon the court which sub- 
 jects him to disbarment.^" And where an attorney signed the 
 names of alleged sureties to an undertaking, and delivered the 
 same to a notary public to obtain the necessary afiidavits as to the 
 sureties' qualifications, but the notary, making no attempt to carry 
 out these instructions, attached his seal and subscribed his name 
 without having secured the required affidavit, and it appeared that 
 the attorney was aware of, if not a party to, the scheme, he was 
 suspended from practice.^ So, an attorney will be disbarred for 
 instructing one, whom he presents as a surety, to swear falsely in 
 justifying; and it has also been intimated that an attorney will 
 be suspended for negligently allowing one to qualify as a surety, 
 when he should have known that such surety was swearing falsely 
 at the time he justified. In this connection the court said : "We 
 wish to be distinctly understood as saying that an attorney is not 
 responsible for the character of the bail presented by his client, 
 unless there is some fact or circumstance which should rouse sus- 
 picion or put him on inquiry. If nothing appears to the con- 
 trary, he may take it for granted that the principal is honest, and 
 that the sureties do not intend to commit perjury. But an attor- 
 ney who undertakes to procure bail, not only assumes the respon- 
 sibility that a party is under when acting for himself, but should 
 act with more circumspection in view of his duty to the court. He 
 cannot get rid of this obligation by employing a subordinate and 
 then closing his eyes to what the latter does." * 
 
 19 state V. Chapman, 11 Ohio 430. 1 Ex p. Ditchburn, 32 Ore. 538, 52 
 
 20 People t'. Piclder, 186 111. 64, 57 Pae. 694. 
 
 N. E. 893. 8 In re Hirst, 9 Phila. (Pa.) 216, 
 
 31 Leg. Int. 340, 1 W. N. C. 18. 
 
|;§ 830, 831] GROUNDS FOK DISBARMENT. 1243 
 
 § 830. Interference with Jurors. — An attorney who at- 
 tempts to interfere with jurors, and to influence their judgment, 
 deserves disbarment and the severest condemnation. The law is 
 watchfully jealous of the purity and independence of juries, which 
 are regarded as essential to the administration of justice and the 
 protection of individual freedom, and any undue interference 
 therewith, no matter by whom, will be rebuked, and, possibly, an 
 offender in this respect may also be punishable for a violation of 
 the penal laws. Wrongs of this character are especially aggravat- 
 ing when they are committed by counsel who are sworn officers of 
 the court, and "whose duty it is to act as guardians of the foun- 
 tains of justice, and who are false to their charge, when they defile 
 or taint those waters, which they are pledged to keep pure and un- 
 polluted. Such conduct in counsel is a gross breach of trust, for 
 which a removal from the trust is but an inadequate punish- 
 ment." ^ 
 
 § 831. Fraud. — It is a sufficient ground for disbarment for 
 an attorney to perpetrate, or aid in the perpetration of, a fraud. 
 Thus, where an attorney procured judgment on a note with knowl- 
 edge of the fact that such note was given for the purpose of perpe- 
 trating a fraud upon the maker thereof, or his creditors, he may 
 be disbarred.* So, where an attorney, for the purpose of procur- 
 ing a large sum of money, disproportionate to legitimate fees, 
 caused suit to be brought on certain notes which he knew to have 
 been paid, and procured a reputable attorney, who was unacquaint- 
 ed with the facts, to bring such suit and verify the petition there- 
 in, he was guilty of unprofessional conduct involving moral turpi- 
 tude, and disbarred.' And an attorney who procures fraudulent 
 personal injury claims from several clients, and obtains settH- 
 ments therein, is guilty of professional misconduct which warrants 
 his disbarment.* So an attorney is subject to disbarment for fil- 
 ing fraudulent certificates to collect witness fees to which he is not 
 
 3 In re Carter, 1 Phila. (Pa.) 507, 5 In re Thatcher, 83 Ohio St. 246, 22 
 
 11 Leg. Int. 210. \nn. Cas. 810, 93 N. E. 895. 
 
 * People V. Keegan, 18 Colo. 237, 32 e In re Mendelsohn, 150 App. Div. 
 
 Pac. 424, 36 Am. St. Rep. 274. 445, 135 N. Y. S. 433. 
 
1244 GROUNDS FOR DISBARMENT. [§ 832 
 
 entitled '' or for fraudulently leading his adversary to believe that 
 a proceeding had been dropped, whereby a default judgment was 
 obtained.* Fraud and deceit toward the court,^ and the client,*" 
 have been heretofore considered. 
 
 § 832. Fraud and Other Misconduct in Divorce Cases. — 
 
 An attorney may be disbarred for conspiring to procure a decree 
 in divorce on grounds which, to his knowledge, do not exist.** 
 And where a husband, who applied to an attorney for the purpose 
 of brihging a divorce, suit, was informed that he had no grounds 
 on which to bring such suit, but that his wife had, and the attor- 
 ney subsequently began suit in the name of the wife, without her 
 authority, claiming to do so on the request of an unknown person 
 whom he supposed was a mutual, friend of the parties, his condiiet 
 was held to justify disbarment.** So, also, disbarment may be in- 
 flicted where an attorney signs affidavits in his client's name, with- 
 out her consent, in divorce proceedings, and seeks to obtain serv- 
 ice by publication, although he knew that the respondent was a 
 resident of the state.*' And an attorney, employed to procure a 
 divorce for a husband, who deliberately attempted, by hired 
 agents, to induce the wife to commit adultery, or to place her in 
 such a situation that adultery would be presumed, is guilty of 
 gross professional misconduct, justifying disbarment.** An 
 attorney who enters into collusion with one spouse for the purpose 
 of manufacturing evidence either for him or against the other 
 spouse, in order to procure a divorce, will be disbarred.** So, it 
 will constitute ground for disbarment where an attorney falsely 
 states, in the bill of complaint in a divorce action, that his client 
 is a resident of the state, and allows his client to give evidence in 
 support of such statement, when he knows the falsity thereof ; ** 
 and .it is equally reprehensible for an attorney to deceive his client 
 
 I Bar Assoc, of Boston v. Scott, 209 12 Dillon v. State, 6 Tex. 55. 
 Mass. 200, 95 N. E. 402. 13 People v. Huggard, 217 111. 366, 
 
 8 People V. Hooper, 218 111. 313, 75 75 N. E. 371. 
 
 N. E. 898. 14 In re Bayles, 156 App. Div. 663, 
 
 9 See SMpra, § 778. 141 N. Y. S. 1052. 
 
 10 See SMpro, § 796. 15 Tn re Gale, 75 N. Y. 526. 
 
 II People V. Huggard, 217 111. 3C6, "People v. Beattie, 137 111. 553, 27 
 75 N. E. 371. N. E. 1006, 31 Am. St. Eep. 384. 
 
§ 833] GROUNDS FOE DISBAItMENT. 1245 
 
 by giving her what purports to be a copy of a decree in divorce 
 before any decree has been entered, in reliance upon -which his 
 client married another person." And where the commencement of 
 a divorce action is encouraged by an attorney from unworthy mo- 
 tives, such as passion or interest, he may be disbarred.*' An at- 
 torney will also be disbarred where it appears that he induced a 
 woman to make a false statement to a client to the effect that such 
 woman was guilty of adultery with the client's husband.*^ So, 
 an attorney will be disbarred where he fails to inform the court 
 that a divorce action presented to it had been previously decided 
 by another court. ^^ It is also unprofessional conduct for an attor- 
 ney to employ a detective in a divorce suit, who had been former- 
 ly employed by the adverse party. "■ But it has been held that 
 where a husband and wife enter into collusion for the purpose of 
 dissolving their marriage, the presentation of an application for 
 divorce for one of the parties by an attorney who had knowledge 
 of the collusion is not an intentional fraud, showing moral turpi- 
 tude, either upon the court or a client.^ 
 
 § 833. Conspiracy to Extort Money. — Where it appeared 
 that an attorney organized a conspiracy for the purpose of em- 
 barrassing and harassing a corporation, and extorting money from 
 it, it was held that his misconduct required disbarment. It was 
 argued, in that case, that, the respondent acted openly and under 
 a claim of right, and in answer to such contention the court said : 
 "This argument would carry weight if the respondent had been 
 in good faith attempting to organize a corporation for a lawful 
 purpose ; but while pretending to do so, his sole object was the dis- 
 honest and unlawful purpose of extorting money by interfering 
 with the established business of a corporation already organized. 
 He did not intend to engage in the business for the purpose for 
 which he pretended to organize his corporation, but he intended 
 
 17 People V. Beattie, 137 111. 553, 27 «» People v. Case, 241 111. 279, 89 
 N. E. 1090, 31 Am. St. Rep. 384. N. E. 638, 25 L.R.A.(N.S.) 578. 
 
 18 State V. Rohrig, (la.) 139 N. W. l Murray v. Lizotte, 31 R. I. 509, 77 
 908. Atl. 231. 
 
 19 In re Durant, 80 Conn. 140, 10 2 In re Cahill, 66 N. J. L. 527, 50 
 Ann. Cas. 539, 67 Atl. 497. Atl. 119. 
 
1246 GEOUNDS FOE DISBAEMENT. [§§ 834, 835 
 
 to demand money for not doing so. The standard of personal and 
 professional integrity which should be applied to persons admitted 
 to practice law in the courts is not satisfied by such conduct as 
 merely enables them to escape the penalties of the criminal law. 
 The statute and the rules of this court require a good moral char- 
 acter as a condition precedent to a license as an attorney. This 
 includes at least common honesty, and is not consistent with an 
 effort to obtain a part of the wealth of another by any means not 
 denounced by the criminal statutes." * 
 
 § 834. Organizing Sham Corporations for Unlawful Pur- 
 poses. — It has been held that it is professional misconduct, af- 
 fording ground for disbarment, for attorneys to organize a sham 
 corporation, with neither capital nor business other than as a me- 
 dium for bringing suits in the federal courts which could not be 
 brought there by the real parties in interest, and to use such cor- 
 poration, after its illegal character had been adjudged, in bring- 
 ing suits in a state court.* 
 
 § 835. Compromising Criminal Cases. — The unlawful com- 
 promise of a criminal charge will constitute ground for disbar- 
 ment where it amounts to the compounding of a crime ; * and 
 where a crime may be compromised with the consent of the com- 
 mitting magistrate only, an attorney wTio undertakes, such a com- 
 promise, without having obtained such consent, is guilty of pro- 
 fessional misconduct; ° but where an attorney has been tried and 
 acquitted of a crime, he will not be disbarred because, pending the 
 criminal proceedings, he asked the district attorney for time in or- 
 der that he might fix up the case with the prosecutor.' 
 
 3 People V. Macauley, 230 111. 208, 82 6 In re Hart, 131 App. Div. 661, 116 
 N. E. 612, 120 Am. St. Rep. 287. See N. Y. S. 193. 
 
 also Gelders v. Haygood, 182 Fed. As to disbarment for crime gener- 
 
 109. ally, see infra, §§ 853-864. 
 
 4 Gelders v. Haygood, 182 Fed. 109. 6 In re Woytisek, 120 App. Div. 373, 
 See also People v. Macauley, 230 111. 105 N. Y. S. 144. 
 
 208, 82 N. E. 612, 120 Am. St. Rep. 7 Ex p. Trumbore, 39 Leg. Int. (Pa.> 
 
 287. CSC. . 
 
§ 836] GEOUNDS FOE DISBARMENT. 1247 
 
 § 836. Obstruction of Justice. — The fidelity of an attorney 
 to his client does not justify an evasion of the fair operation of 
 "the law, or an obstruction, or attempt to obstruct, the due admin- 
 istration of justice.' Thus, it has been held that an attorney will 
 be disbarred where he induced a United States commissioner, who 
 informed him that he relied solely on his arguments, to permit a 
 prisoner charged with murder in the first degree to give bail, and 
 who thereupon escaped.' So, an attorney who advises a client, out 
 on- bail, to forfeit his recognizance, or, knowing that he intended 
 to forfeit it, made no suggestion thereof to the court, may be dis- 
 barred.^" Likewise an attorney for a fugitive from justice who 
 offers to forward a letter to throw the authorities off the scent, and 
 to bribe an officer, and informs the authorities that he does not 
 know the fugitive's whereabouts, will be disbarred.'^ And wherp 
 an attorney who had been paid certain money by mistake, prom- 
 ised to hold the same for certain purposes, or return it to the pay- 
 er, when threatened with an injunction, but, notwithstanding such 
 promise, paid it out to his client less his fees, it was held that he 
 was guilty of unprofessional conduct involving moral turpitude.^* 
 It is also unprofessional conduct, meriting disbarment, for an at- 
 torney to advise his client to disregard an order of the court,*' or 
 to prevent the examination of an execution debtor in supplemen- 
 tary proceedings.** But it has been held that an attorney will not 
 be disbarred merely because he advised his client to remove money 
 and other property from a certain deposit vault, and to place them 
 elsewhere, in order to avoid an attachment.*' ISTor is it unprofes- 
 sional conduct for an attorney to lend his client money from time 
 to time, without attempting to control its application, and to take 
 an assignment therefor, with knowledge of the fact that an order of 
 
 'Ex p. Giberson, 4 Crancli (C. C.) 12 In re Cunningham, 9 Ohio Dec. 
 
 503, 10 Fed. Cas. No. 5,388. See also (Reprint) 717, 16 Cine. L. Bui. 447. 
 
 Wernimont v. State, 101 Ark. 210, 13 Coffin v. Burstein, 68 App. Div. 
 
 Ann. Cas. 1913D 1156, 142 S. W. 194. 22, 74 N. Y. S. 274. 
 
 9 State V. Burr, 19 Neb. 593, 28 N. H Ex p. Miller, 37 Ore. 304, 60 Pae. 
 
 W. 261. 909. 
 
 Win re Pascal, 146 App. Div. 830, IB People v. Robinson, 32 Colo. 241, 
 
 131 N. Y. S. 823. 75 Pac. 922. 
 
 11 In re Billington, 156 App. Div. 
 63. 141 N. Y. S. 16. 
 
1248 GEOUNDS FOE DISBAEMENT. [§ 837 
 
 support had been made against such client.*^ So, an attorney will 
 usually be protected where he acts in good faith, even though he 
 may be technically in fault; thus, where a certain judge ordered a 
 guardian not to pay out any part of a trust fund excepting on an 
 order of the court, and refused to grant such an order to an attor- 
 ney in payment of his services because his claim was not properly 
 itemized, it was held that the attorney would not be disbarred for 
 obtaining the money from such guardian, after informing him of 
 the facts, where it also appeared that the judge who refused to 
 make the order was without jurisdiction, and that the attorney had 
 submitted the matter to another judge, who promised to sign such 
 order." 
 
 § 837. Obstruction by Corporation Claim Department 
 under Supervision of Attorney. — Whether an attorney repre- 
 sents a corporation or an individual, his duty is clear in so far as 
 refraining from an actual perversion or obstruction of justice is 
 concerned. He cannot shut his eyes to a system maintained by his 
 subordinates whereby material witnesses are kept away from 
 court, testimony is purchased, and other wrongs equally reprehen- 
 sible are committed. The affirmative duty to protect the courts 
 from perjury and fraud rests with him. In a recent case it ap- 
 pears that the attorney for a corporation, against whom many 
 actions for damages were pending, approved of expenditures, made 
 by the corporation claim department, for purposes which tended 
 to impede and obstruct the administration of justice, as, for in- 
 stance, to pay their witnesses to give colored or false testimony, 
 to keep the witnesses of the adverse party out of court, and to 
 influence court officers and attendants, and physicians and hospital 
 attendants, to aid, by testimony and otherwise, the corporation in 
 its litigation, and it was held that such attorney should be dis- 
 barred, and that it was immaterial whether he devised such ob- 
 jectionable methods, or whether he inherited or developed them." 
 
 16 In re Reese's Estate, 41 Pa. 18 In re Robinson, 151 App. Div. 
 
 Super. Ct. 72. 589, 136 N. Y. S. 548. 
 
 W In re Kowalsky, (Cal.) 35 Pac. 77. 
 
,^§ 838, 839] GROUNDS foe disbarment. 1249 
 
 § 838. Preventing Extradition. — It has been held that an. 
 .attorney is not guilty of unprofessional conduct, meriting disbar- 
 ment, in attempting to prevent the extradition of a client, charged 
 with perjury, from one state to another, excepting in accordance 
 "with the law. And where it appeared, in such proceedings, that 
 the fugitive, upon being admitted to bail pending the extradition 
 proceedings, left the jurisdiction on a boat chartered by his at- 
 torney, but there was no proof of an intention to forfeit his bail 
 and thereby to evade extradition, or that the attorney had any 
 such unlawful purpose in view, the court will not assume an un- 
 lawful intention on the part of the attorney, and he will not be 
 •disbarred." 
 
 Fraud in Procuring Admission, and Unauthorized Acts and 
 
 Practice. 
 
 § 839. Fraud in Procuring Admission Generally. — One 
 
 who has been admitted to practice law by the perpetration of a 
 fraud in connection with his application for admission, will be 
 disbarred.*" So, an attorney who moves for the admission to 
 practice of one whom he knows to be ineligible, and conceals that 
 fact from the court, is guilty of misconduct for which he may be 
 ■disbarred ; "^ as is one who knowingly executes a false affidavit 
 ;as to the term of service of a law student in his office, thereby 
 fraudulently procuring the student's admission to the bar.* Thus, 
 :an attorney will be disbarred where, on his application for admis- 
 rsion, he concealed from the court facts which tended to show that 
 
 19 In re KafFenburgh, 188 N. Y. 49, he had been convicted of a crime in 
 
 80 N. E. 570, affirming 115 App. Div. another state and had been disbarred 
 
 346, 101 N. Y. S. 507. by a local court of that state, will be 
 
 ^ In re Bradley,- 14 Idaho 784, 96 disbarred, although at the time of his 
 
 Pac. ii08; In re Leonard, 127 App. application he had been pardoned of 
 
 Div. 493, 111 N. Y. S. 905, affirmed the crime, and a petition for his 
 
 193 N. Y. 655, 87 N. E. 1121; In re reinstatement was pending. Matter 
 
 Singer, 156 App. Div. 85, 141 N. Y. S. of Pritchett, 122 App. Div. 8, 106 N. 
 
 74; Ex p. Brown, 2 Pittsb. (Pa.) 152; Y. S. 847. 
 
 Vernon County Bar Ass'n v. McKib- l In re Deringer, 12 Phila. (Pa.) 
 
 bin, 153 Wis. 350, 141 N. W. 283. An 217, 34 Leg. Int. 248, 4 W. N^. C. 200. 
 
 jittorney who concealed from the court, 2 In re Zatulove, 156 App. Div. 79, 
 
 .on his application for admission, that 141 N. Y. S. 75. 
 Attys. at L. Vol. II.— 79. 
 
1250 GKOUNDS FOE DISBAEMENT. [§ 840 
 
 his reputation for morality was bad, and which, had they been 
 disclosed, would have resulted in a denial of his application for 
 admission in the first instance.* Disbarment will also result where 
 it appears that an attorney, in applying for admission as a prac- 
 titioner from a sister state, presents to the court, as evidence of 
 his good moral character and standing in such other state, a 
 forged letter.* It has been held, however, that a minor conceal- 
 ment or discrepancy in connection with the facts relating to the 
 time of clerkship served are not, in themselves, sufficient to war- 
 rant disbarment; but a wilful and clear misstatement of suck 
 facts would certainly be enough.* 
 
 § 840. Concealment of Prior Disbarment. — An attorney 
 will also be disbarred where it appears that, in applying for ad- 
 mission to practice, he concealed from the court the fact that he 
 had been disbarred in a sister state ; * and it is immaterial, it 
 seems, whether such prior disbarment was justified or not.' An 
 application for admission, under these circumstances, usually in- 
 volves the presentation of false certificates or affidavits which, in 
 themselves, constitute a ground for disbarment.' So, it has been 
 
 3 People V. Gilmore, 214 111. 569, 73 Georgia. — Propper v. Owens, 136 
 N. E. 737, 69 L.E.A. 701 ; People v. Ga. 787, 72 S. E. 242. 
 
 Propper, 220 111. 455, 77 N. E. 208; Illinois.— Feople v. Hahn, 197 111. 
 
 In re Kristeller, 154 App. Div. 556, 137, 64 N. E. 342. 
 
 139 N. Y. S. 64; In re O'Grady, 4 W. New York.— In re Marx, 115 App. 
 
 N. C. (Pa.) 199. Compare SJate v. Div. 448, 101 N. Y. S. 680; In re 
 
 Gebhardt, 87 Mo. App. 542. Pritchett, 122 App. Div. 8, 106 N. Y. 
 
 4 In re Woodward, 27 Mont. 355, 71 S. 847. 
 
 Pac. 161. North Dakota. — In re Olmstead, 11 
 
 6 See Ex p. Hill, 2 W. Bl. (Eng.) N. D. 306, 91 N. W. 943. 
 
 991 ; Matter of Page, 1 Bing. 160, 8 E. Oklahoma.— In re Mosher, 24 Okla. 
 
 C. L. 451, 7 Moo. C. PI. 572, 1 L. J. C. 61, 20 Ann. Cas. 209, 102 Pac. 705, 24 
 
 PI. 45; Matter of , 2 B. & Ad. L.R.A.(N.S.) 530. 
 
 706, 22 E. C. L. 180, 9 L. J. K. B. Tennessee.— State Board of Law Ex- 
 
 321; In re Holland; 6 U. C. Q. B. 0. S. aminers v. Williams, 116 Tenn. 51, 92 
 
 441 ; People v. Comstock, 176 111. 192, S. W. 521. 
 
 o2 N. E. 67. 7 In re Pritchett, 122 App. Div. 
 
 8 California. — In re Lowenthal, 61 8, 106 N. Y. S. 847. 
 
 Cal. 122. 8 In re Bradley, 14 Idaho 784, 96 
 
 Colorado. — People v. Campbell, 26 Pac. 208; In re Leonard, 127 App. Div. 
 
 Colo. 481, 58 Pac. 591. 493, 111 N. Y. S. 905, affirmed 193 N. 
 
§§ 841, 842] GEOUNDS FOE DISBARMENT. 1251 
 
 held that one who applied for admission in the state of New 
 York on the strength of the fact that he was a member of the 
 bar of Texas, but concealed from the court the fact that he had 
 been disbarred in Virginia, while practicing there under an as- 
 sumed name, will be suspended from practice.® But it seems that 
 the failure of an attorney, in applying for admission to the bar 
 of a sister state, to disclose to the court the fact that disbarment 
 proceedings are pending against him in the state of his former 
 domicile, does not materially aifect his moral character or his 
 right to admission.^" 
 
 § 841. Unauthorized Acts. — An attorney's general authority 
 is well defined, ^"^ and if he acts without authority, or exceeds 
 his authority, and thereby is guilty of grave unprofessional con- 
 duct, such, for instance, as may result in a perversion of justice, 
 or with serious detriment to his client, he woiild undoubtedly be 
 subject to such disciplinary measure as the court might see fit 
 to exercise in view of the circumstances disclosed.^* Thus where 
 an attorney undertakes, without authority, to act in a divorce pro- 
 ceeding, and to procure a decree of divorce therein, he may be 
 disbarred.'* So, where an attorney, without the authority of the 
 plaintiff, brings an action for personal injuries, and serves plead- 
 ings therein with knowledge of the fact that his alleged client has 
 repudiated his assumed authority, and has refused to allow him 
 to represent her, and to verify the pleadings prepared by him, he 
 is guilty of misconduct for which he may be disbarred.'* 
 
 § 842. Unauthorized Practice. — In several jurisdictions 
 certain restrictions are placed upon practicing attorneys,'^ and 
 in some instances the failure to comply with regulations of this 
 character amounts to criminal misconduct which, in itself, is 
 
 Y. 655, 87 N. E. 1121; Dean v. Stone, 12 Clark v. Willett, 35 Cal. 534. 
 
 2 Okla. 13, 35 Pac. 578. 18 People v. Huggard, 217 111. 366, 
 
 9 In re Marx, 115 App. Div. 448, 75 N. E. 371; Dillon v. State, 6 Tex. 
 101 N. Y. S. 680. 55. 
 
 10 In re Hovey, 1 Cal. App. xviii. l* In re Mendelsohn, 150 App. Div> 
 mem., 81 Pac. 1019. 445, 135 N. Y. S. 438. 
 
 11 See supra, §§ 199-283. 15 See supra, §§ 69-71. 
 
1252 
 
 GEOUNDS FOE DISBAEMENT. 
 
 [§ 842 
 
 usually a ground for disbarment.*® Thus it is ground for disbar- 
 ment to practice under the name of a firm with which respondent 
 is not connected,*'' or which has ceased to exist.*' So, too, it has 
 been held that an attorney is responsible for the methods adopted 
 
 16 See infra, § 853. 
 
 " In re Gluckr 139 App. Div. 894, 
 123 N. Y. S. 857. 
 
 18 It was contended, in such a case, 
 that, under the provisions of the part- 
 nership law of the state, "the use of 
 a partnership or business name may 
 be continued" where the business con- 
 tinued to be conducted by any of the 
 partners, their assignees or ap- 
 pointees, and that, therefore, the re- 
 spondent was within his rights. But 
 the penal code of the state provided 
 that: "No person or persons shall 
 hereafter carry on or conduct or 
 transact business in this state under 
 any assumed name or under any 
 designation, name or style, corporate 
 or otherwise, other than the real name 
 or names of the individual or indi- 
 viduals conducting or transacting 
 such business, unless such person or 
 persons shall file in the office of the 
 clerk of the county or counties in 
 which such person or persons con- 
 duct, or transact, or intend to con- 
 duct or transact such business, a 
 certificate setting forth the name 
 under which such business is, or 
 is to be, conducted or transacted, and 
 the true or real full name or names 
 of the person or persons conducting 
 or transacting the same, with the post- 
 .office address or addresses of said per- 
 son or persons." In disapproving the 
 respondent's contention, the court 
 said: "It is quite true that the pro- 
 fession of the law is not regarded as 
 a business in a commercial sense, but 
 
 the organizing of a firm or copartner- 
 ship and the selecting of a, firm name, 
 the practice of the profession there- 
 under and the establishing of a repu- 
 tation and all that pertains thereto 
 gives it the character of business, and 
 it may be that these statutes apply 
 to copartnerships among attorneys in 
 so far as is consistent with their 
 duties to their clients and to the 
 courts under their oaths of office and 
 the provisions of the code with refer- 
 ence to the practice of the profession 
 in their own name or that of a co- 
 partnership to which they belong; 
 . . . and, therefore, when the de- 
 fendant undertook to file a certificate 
 under the provisions of the penal code, 
 selecting a name under which he pro- 
 posed to carry on the practice of the 
 law, he could not thereby evade or 
 nullify the provisions of that section, 
 nor could he nullify the order of the 
 court, by arranging to do for Hummel 
 in his name that which the court has 
 prohibited him from doing himself. 
 The defendant has not shown himself 
 to be a partner, an assignee or an 
 appointee of the firm of Howe & Hum- 
 mel, within the requirements of the 
 partnership law, and he is not now in 
 a position in which he can acquire 
 such a right." In re Kaffenburgh, 
 188 N. Y. 49, 80 N. E. 570, ajjit-m- 
 ing 115 App. Div. 346, 101 N. Y. S. 
 507. See also New York Penal 
 Law, § 277; In re Rothschild, 
 140 App. Div. 583, 125 N. Y. S. 
 629. 
 
§ 843] 
 
 GKOUNDS FOE DISBARMENT. 
 
 1253 
 
 by a collection association which sends out claims under his name 
 with his knowledge and consent.^' 
 
 Conduct Contrary to Public Policy. 
 
 § 843. Unlawful Contracts. — The right of an attorney to 
 enter into contracts for compensation with his client is, in this 
 country, beyond question ; ^^ but it is essential that such contracts 
 should be fair and honest.^ It has also been shown, heretofore, 
 that certain contracts are void or voidable, on grounds of public 
 policy,* and this is particularly true of contracts which disclose 
 champerty, barratry, or maintenance.' In some instances these 
 latter contracts, especially where they provide that an attorney 
 is to pay the costs and expenses of litigation,* or where they con- 
 sist of the purchase of litigious rights,* are deemed not only to 
 be unlawful as a matter of general and statute law, but are also 
 made penal offenses; and, therefore, an attorney who enters into 
 such a contract is guilty of flagrant professional misconduct for 
 which he may be disbarred.* So, where an attorney entered into 
 a conspiracy, with a judge and his former client, to extort money 
 from another by threatening a prosecution for the alienation of 
 the affection of such client's husband, and obtained a large sum 
 of money in pursuance of such conspiracy, which was divided 
 between the parties, the attorney will be disbarred.'' But the 
 fact that an attorney enters into an inequitable contract with his 
 client will not, of itself, constitute ground for disbarment ; ' in- 
 
 19 In re Hutson, 127 App. Div. 492, 
 111 N. Y. S. 731. 
 
 20 See supra, § 417. 
 iSee supra, §§ 428-432. 
 
 2 See supra, §§ 433-438. 
 
 3 See supra, §§ 379-399. 
 * See supra, § 389. 
 sSee supra, §§ 395-397. 
 
 6 United States. — See Bunel «. 
 O'Day, 125 Fed. 303. 
 
 Alabama. — State v. Quarles, 158 
 Ala. 54, 48 So. 499. 
 
 New York. — In re Bleakly, 5 Paige 
 311; In re Klatzkie, 142 App. Div. 
 352, 126 N. Y. S. 842. 
 
 Pennsylvania. — Maires's Appeal, 
 189 Pa. St. 99, 41 Atl. 988, 43 W. N. 
 C. 311. 
 
 Utah.— In re Evans, 22 Utah 366, 
 62 Pac. 913, 83 Am. St. Rep. 794, 53 
 L.R.A. 952. 
 
 Washington. — State v. Martin, 45 
 Wash. 76, 87 Pac. 1054; State v. 
 Eossman, 53 Wash. 1, 17 Ann. Cas. 
 625, 101 Pac. 357, 21 L.R.A. ( N.S. ) 821 . 
 And see the two sections following. 
 
 7 In re Burke, 9 Ohio Cir. Dee. 350, 
 17 Ohio Cir. Ct. 315. 
 
 8 In re Jones, 29 Utah 333, 81 Pac. 
 162. 
 
1254 GEOUNDS rOE DISBAEMENT. [§ 844 
 
 deed, there may be a recovery on a quantum meruit for services 
 rendered in pursuance of contracts of this character, even though 
 they might have been avoided on grounds of public policy.^ Nor 
 vyill an attorney be disbarred, it seems, merely because he refused 
 to consent to the appointment of a receiver for a railroad unless 
 such proposed receiver would secretly promise to make the at- 
 torney the general manager of such railroad, at least in the 
 absence of proof that the attorney V7as unfitted for the position 
 sought by him.'" Neither is the lending of money at a usurious 
 rate of interest sufficient ground for disbarring an attorney, in 
 absence of circumstance of hardship or oppression.*' 
 
 § 844. Solicitation of Business Generally. — While a mere 
 effort to procure employment in an honorable vs^ay, and for 
 legitimate purposes, is not a sufficient ground for disbarment, and 
 may not even be censurable,'* it is evident that conduct of this 
 character may be carried to an extent where it will not only de- 
 serve censure, but also disbarment; thus, an attorney has been 
 disbarred where he solicited business by a letter in which he used 
 the following language: "If you go to trial without me in your 
 case, I will bet you, you hang — will bet you the best suit of 
 clothes made.. You had better get busy." " It has also been 
 held that a lawyer may be disbarred where it appears that he 
 employs "runners" to hunt up prospective litigants, and to induce 
 them to come to the lawyer's office and employ him.'* Statutes 
 in some states have declared this rule.'^ 
 
 9 See supra, § 438. 99, 41 Atl. 988, 43 W. N". C. 311. See 
 
 10 Ex p. Cole, 1 McCrary, 405, 6 also Megulre v. Corwine, 101 U. S. 
 Fed. Cas. No. 2,973. 108, 25 XJ. S. (L. ed.) 899; Alpers v. 
 
 11 People V. Wheeler, 259 111. 99, 102 Hunt, 86 Cal. 78, 24 Pae. 846, 21 Am. 
 N. E. 188. St. Rep. 17, 9 L.R.A. 483; In re 
 
 1^ See Vocke v. Peters, 58 111. App. Welch, 156 App. Div. 470, 141 N. Y. S. 
 
 338. 381; Ingersoll v. Coal Creek Coal Co. 
 
 13 In re Hittson, 15 N. M. 6, 99 117 Tenn. 263, 10 Ann. Cas. 829, 98 
 Pac. 689. See also In re Aldrich, S. W. 178, 119. Am. St. Rep. 1003, 9 
 (Vt.) 86 Atl. 801. L.R.A.(N.S.) 282. And see the pre- 
 
 Solicitation of business as a de- ceding section, and also the one fol- 
 
 fense to actions for compensation has lowing, 
 
 been considered supra, § 562. 15 New York Penal Law, § 274, pro- 
 
 14 Appeal of Maires, 189 Pa. St. vides that an attorney must be re- 
 
§ 845] 
 
 GEOUNDS FOE DISBAEMENT. 
 
 125£ 
 
 § 845. Solicitation by Advertisement. — The solicitation of 
 legal business by attorneys by advertising therefor in jjublic news- 
 papers, other than by the insertion of a mere card showing the 
 address of an attorney, has been condemned, and where such ad- 
 vertisement is for improper purposes, or false, deceptive, or mis- 
 leading, it is misconduct for which disbarment is a proper punish- 
 ment. Thus, where an attorney, under the disguise of carrying 
 on a real estate business, manipulates a scheme to defraud the 
 general public by advertisements inserted in the public press, he 
 will be disbarred.'^ A most reprehensible feature of the solicita- 
 tion of business by attorneys is to be found in those advertise- 
 ments which solicit clients to bring divorce suits; such advertis- 
 ing is prohibited in some states by statute, and also made a ground 
 for disbarment ; and it would seem that a like result would follow 
 from the insertion of such advertisements irrespective of statutory 
 
 moved from office if he shall "by him- 
 self, or by or in the name of another 
 person, either before or after action 
 brought, promise or give, or procure 
 to be promised or given, a, valuable 
 consideration to any person, as an in- 
 ducement to placing, or in considera- 
 tion of having placed, in his hands, or 
 in the hands of another person, a de- 
 mand of any kind, for the purpose of 
 bringing an action thereon, or of 
 representing the claimant in the pur- 
 suit of any civil remedy for the re- 
 covery thereof. But this subdivision 
 does not apply to an agreement be- 
 tween attorneys and counselors, or 
 either, to divide between themselves 
 the compensation to be received." See 
 Irwin V. Curie, 171 N. Y. 409, 64 N. E. 
 161, 58 L.E.A. 830, reversing 56 App. 
 Div. 514, 67 N. Y. S. 380; Hirshbach 
 r. Ketchum, 5 App. Div. 324, 39 N. Y. 
 S. 291 ; Matter of Hirshbach, 72 App. 
 Div. 79, 76 X. Y. S. 117; Hirshbach 
 V. Ketchum, 79 App. Div. 561, 80 N". 
 Y. S. 143; Hirschbach r. Ketchum, 84 
 App. Div. 258, 82 N. Y. S. 739, affirm- 
 
 ing 40 Misc. 306, 81 N. Y. S. 957; 
 Matter of Clark, 108 App. Div. 150, 
 95 N. Y. S. 388, affirmed 184 N. Y. 
 222, 77 N. E. 1, petition for reinstate- 
 ment denied 128 App. Div. 348, 112 
 N. Y. S. 777; Matter of Shay, 133 
 App. Div. 547, 118 N. Y. S. 146, 
 affirmed 196 N. Y. 530, 89 N. E. 1112. 
 
 A Washington statute provides that 
 any attorney who seeks or obtains em- 
 ployment to prosecute or defend in 
 any suit or case at law or in equity 
 by means of personal solicitation of 
 such employment for him, or who, by 
 himself or another, seeks or obtains 
 such employment by giving to the 
 person from whom the employment is 
 sought, money or any other thing of 
 value, shall be deemed guilty of 
 barratry, and shall be disbarred, in 
 addition to other penalties prescribed 
 thereby. State v. Eossman, 53 Wash. 
 1, 17 Ann. Gas. 625, 101 Pac. 357, 21 
 L.R.A.(N.S) 821. 
 
 16 In re Wilson, 79 Kan. 450, 100 
 Pac. 75. And see the preceding sec- 
 tion. 
 
1256 GROUNDS FOE DISBARMENT. [§ 845 
 
 authority therefor," the courts not being confined, as a general 
 rule at least, to the statutory grounds for disbarment.*' Thus, 
 an advertisement reading, "Loyal, wealthy attorney guarantees, 
 family freedom in a month; no advance costs; witnesses quietly 
 volunteered," has been held to be a sufficient ground for disbar- 
 ment.*' In another case where an advertisement read, "Divorces- 
 legally obtained for incompatibility, etc. Eesidence unnecessary. 
 Fee after decree. Address P. O. box 1037, Chicago, 111.," the 
 court, in entering the order of disbarment, said : "Such shameless, 
 effrontery has never before, to our knowledge, been manifested 
 by any member of this or any other bar, and it should stigmatize 
 their author with enduring shame and contumely. These adver- 
 tisements are not only a libel upon the courts of justice of this- 
 state, but are false in themselves, and put forth to the public by- 
 one who would not place his name to them. Wo high-minded,, 
 honorable member of our noble profession, in this or in any other 
 state, so demeans himself, nor does any member of it, jealous of 
 his own honor, and duly appreciating his relations to the profes- 
 sion and to the courts, so conduct" himself.^" In the case of a 
 fi.rst delinquency of the character under consideration, the fact 
 that the advertisement was discontinued upon the complaint of 
 the bar association may be considered by the court in mitigation^ 
 of punishment.' 
 
 Misconduct as Official. 
 
 § 846. Misconduct as Judge. — It has been held that one- 
 may be disbarred as ar. attorney even though, when the proceed- 
 ings were instituted, he was a judge of a court of record ; thus, a 
 judge may be disbarred where he undertakes to exercise the duties, 
 of his office clearly contrary to statute, and to further his desires 
 and purposes as an attorney, and not as a judge.^ So, a justice- 
 
 IT People V. MacCabe, 18 Colo. 186, 18 See supra, § 759. 
 
 82 Pac. 280, 36 Am. St. Kep. 270, 19 » People v. Smith, 200 111. 442, 66 
 
 L.R.A. 231 ; People v. Taylor, 32 Colo. N. E. 27, 93 Am. St. Rep. 206. 
 
 250, 75 Pae. 914; People v. Propper, 2» People v. Goodrich, 79 111. ]48. 
 
 220 111. 455, 77 N. E. 208; In re l In re Sehnitzer, 33 Nev. 581, 112" 
 
 Schnitzer, 33 Nev. 581, 112 Pac. 848, Pac. 848, 33 L.E.A.(N.S.) 941. 
 
 33 L.R.A.(N.S.) 941; Reno Bar Ass'n 2In re Breen, 30 Nev. 164, 93 Pac. 
 
 V. Secular, 34 Nev. 313, 123 Pac. 13. 997, 17 L.R.A.(N.S.) 572; In re- 
 
§ 847] GEOUNDS FOE DISBAEMENT. 1257 
 
 of the peace lias been disbarred for misconduct in the performance 
 of his judicial duties.' But where a candidate for the office of 
 judge gave a written promise of appointment to a friend to be 
 handed to an office-seeker in the event of the candidate's election, 
 the friend being charged to accept no money therefor, and such 
 money was accepted under the belief that the said office-seeker 
 would injure the candidate, but was returned after the election, 
 it was held that the transaction did not warrant the candidate's 
 disbarment.* On the other hand, it has been held that a judge 
 may not be disbarred because of the fact that he practiced law, 
 contrary to statute, while occupying his judicial position, ° be- 
 cause the oifense was that of a judge and not of an attorney.® 
 
 § 847. Misconduct as District Attorney. — So, the court 
 may suspend or disbar an attorney for misconduct in connection 
 with his duties as a prosecuting officer,' and this is true although 
 he is also subject to impeachment by the state.' Thus, a prose- 
 cuting attorney may be disbarred for gross infidelity to his trust.* 
 So, the refusal or neglect of a district attorney to prosecute per- 
 sons charged with the commission of a crime, will justify his dis- 
 barment.** And where a prosecuting officer receives sums of 
 money as a consideration for refraining from enforcing the penal 
 laws of the state, he will be disbarred. *' So, in some jurisdictions, 
 disbarment may be justified where it appears that the partner of 
 a prosecuting officer defended criminals in the interest of the 
 
 Dellenbaugh, 9 Ohio Cir. Dec. 325, 17 "> In re Norris, 60 Kan. 649, 57 Pae. 
 
 Ohio Cir. Ct. 106. See also In re 528; In re Jones, 70 Vt. 71, 39 Atl. 
 
 Dellenbaugh, 9 Ohio Cir. Dec. 380, 17 1087. 
 
 Ohio Cir. Ct. 302; State v. Martin, 45 8 In re Jones, 70 Vt. 71, 39 Atl. 
 
 Wash. 76, 87 Pac. 1054. 1087. 
 
 8 In re Hobbs, 75 N. H. 285, 73 Atl. 9 In re Jones, 70 Vt. 71, 39 Atl. 
 
 303. 1087; State v. Hays, 64 W. Va. 45, 
 
 4 People V. Goddard, 11 Colo. 259, 61 S. E. 355. 
 
 18 Pac. 338. IC In re Voss, 11 N. D. 540, 90 N. W. 
 
 5 Baird v. Justice's Court, 11 Cal. 15. 
 
 App. 439, 105 Pac. 259; In re Silkman, " People v. Anglim, 33 Colo. 40, 78 
 
 88 App. Div. 102, 84 N. Y. S. 1025. Pac. 687; In re Simpson, 9 N. D. 379, 
 And see also supra, § 71. 83 N. W. 541. 
 
 6 Baird v. Justice's Court, 11 Cal. 
 App. 439, 105 Pac. 259. 
 
1258 GEOUNDS rOE DISBAEMENT. [§ 848 
 
 firm; but the fact that the district attorney occupies the same 
 office with another attorney, and is associated with him in civil 
 business, and that such other attorney has been retained to defend 
 persons accused of crime in the courts wherein the district at- 
 torney officiates, does not justify the disbarment of the latter.** 
 Misconduct which will justify disbarment of a district attorney, 
 it has been said, is such as shows him to be unworthy of the public 
 confidence, and unfit to be trusted with professional duties.*' And 
 in one case disbarment was ordered for a crime wholly ■discon- 
 nected with professional duty.** A district attorney will not be 
 disbarred merely because he has undertaken to conduct a civil 
 case in the interest of the prosecuting witness in a criminal case 
 based on the same state of facts ; *° and this is especially true 
 where, prior to trial or judgment in the civil case, he withdraws 
 therefrom.** 
 
 § 848. Misconduct as Notary Public. — There seems to be 
 no question as to the right of the court to disbar an attorney who, 
 as a notary public, has been guilty of misconduct; *'' such as 
 falsely certifying *' or antedating *® an affidavit. In another case, 
 however, where an attorney, as a notary, falsely certified that 
 certain persons appeared before him, when in fact they did not 
 do so, and it further appeared that there was no motive or inten- 
 tion to do wrong, or to injure any one, on the part of the attor- 
 ney, it was held that he was guilty of an offense which would 
 warrant his disbarment, and was severely censured therefor, but, 
 
 12 In re Disbarment of Lyons, 162 16 In re Johnson, 27 S. D. 386, 131 
 Mo. App. 688, 145 S. W. 844. And N. W. 453. 
 
 see also supra, § 71. "See People v. Hahn, 197 111. 137, 
 
 13 State V. Hays, 64 W. Va. 45, 61 64 N. E. 342 ; New York Bar Assoc. 
 S. E. 355. See also In re Disbarment v. Chappell, 131 App. Div. 69, 115 
 of Lyons, 162 Mo. App. 688, 145 N. y. S. 868. 
 
 S. W. 844 . 18 state v. Finn, 32 Ore. 519, 52 
 
 14 Unlawful sale of liquor. Un- Pac. 756, 67 Am. St. Rep. 550; In re 
 derwood v. Com., 105 S. W. 151, 32 Hopkins, 54 Wash. 569, 103 Pac. 805. 
 Ky. L. Rep. 32. lain re Arctander, 26 Minn. 25, 1 
 
 15 In re Johnson, 27 S. D. 386, 331 N. W. 43. 
 N. W. 453. See also In re Disbar- 
 ment of Lyons, 162 Mo. App. 688, 
 
 145 S. W. 844. 
 
§ 849] 
 
 GROUNDS I'OE DISBAKMENT. 
 
 1259 
 
 because of the mitigating circumstances, he was not further disci- 
 plined.*" To the objection that notarial misconduct was outside 
 the scope of the attorney's professional relations/ the court in 
 one case said tersely: "What the respondent did as notary public 
 he as attorney at law procured himself to do. As respects the 
 point that this procurement was in his professional capacity, the 
 case in principle is in no respect different from what it would 
 have been if he had procured some other notary public to do what 
 he procured himself to do." * 
 
 Misconduct outside Scope of Professional Relations. 
 
 § 849. Generally. — The power of the court to disbar an 
 , attorney is not limited to those cases or instances of misconduct 
 wherein he has been employed, or has acted, in a professional ca- 
 pacity ; ^ but, on the contrary, this power may be exercised where 
 an attorney's misconduct, outside the scope of his professional 
 relations, shows him to be an unfit person to practice law.* Thus, 
 
 80 In re Barnard, 151 App. Div. 580, 
 136 N. Y. S. 185. 
 
 iSee also infra, §§ 849-852. 
 
 2 In re Arctander, 26 Minn. 25, 1 
 N. W. 43. 
 
 SEe Blake, 3 El. & El. 34, 107 E. 
 C. L. 34; Re Hill, L. E. 3 Q. B. (Eng.) 
 543 (where the accused attorney was 
 acting as clerk for a firm of attor- 
 neys) ; In re Eadford, 168 Mich. 474, 
 134 ST. W. 472. See also Ex p. Stein- 
 man, 95 Pa. St. 220, 40 Am. Eep. 637, 
 reversing 8 W. N. C. 296, and cases 
 in the following notes. 
 
 1 In re Haymond, 121 Cal. 385, 53 
 Pac. 899; In re Eadford, 168 Mich. 
 474, 134 N. W. 472; In re Percy, 36 
 N. Y. 651 ; In re Alexander, 137 App. 
 Div. 770, 122 N. Y. S. 479; In re Hey- 
 mann, 156 App. Div. 73, 140 N. Y. S. 
 ]065; State v. MeClaugherty, 33 W. 
 Va. 250, 10 S. E. 407. 
 
 In New York it was once held that 
 an attorney could not be disbarred for 
 
 ■a, non-indictable offense committed in 
 his private capacity. State Bank i'. 
 Stryker, 1 Wheel. Crim. 330 (draw- 
 ing two checks upon banks where he 
 had no account, one of the checks be- 
 ing paid by the bank upon which it 
 was drawn). It was also held that 
 an attorney could not be disciplined 
 for misconduct in his private capacity 
 as a, party to an action, because the 
 law prescribed other and different 
 punishments for his acts and because 
 he had already been punished for eon- 
 tempt and he could not be punished 
 again for the same offense. In re 
 Post, 4 Silvernail, 248, 7 N. Y. S. 
 438. But the latter decision disre- 
 gards the settled rules that disbar- 
 ment is not intended as punishment, 
 and that an attorney may be dis- 
 barred upon his conviction of a crime 
 (see infra, §§ 763, 856 et seq.), or 
 for contempt (see infra, § 792) ; and 
 even before that decision the court of 
 
1260 
 
 GROUNDS FOE DISBAEMENT. 
 
 [§ 84J> 
 
 where an attorney, while acting as an executor, neglected to file 
 his account in accordance with an order of the probate court,, 
 and sought to deceive the court, and defraud persons interested 
 in the estate, his conduct constitutes a sufficient ground for 
 his disbarment.* It has also been held that untrue statements 
 made by an attorney, without probable cause, in a public 
 speech, charging others with- burning specific property, must 
 be weighed by the court in determining whether he should 
 be disbarred, especially when coupled with other misconduct.* 
 So, an attorney may be disbarred for the commission of crime, 
 even though such crime is not connected with his profes- 
 sional duties, or the performance thereof.' In cases of this char- 
 acter, however, it must appear that the misconduct charged 
 against the attorney is of such a nature as to evince a lack of' 
 those qualities which are essential qualifications of an attorney.* 
 
 appeals had expressly overruled the 
 contention that general bad character 
 or misconduct outside of a professional 
 relation was not ground for disbar- 
 ment (Percy's Case, 36 N. Y. 651, 653, 
 654) ; and that court later sustained 
 the disbarment of an attorney for 
 misconduct as a party plaintiff in an 
 action, although it would seem that 
 his acts were criminal. Ryan v. 
 Opdyke, 143 N. Y. 528, 38 N. E. 963. 
 Still later the appellate division dis- 
 barred an attorney for misappropriat- 
 ing the proceeds of checks entrusted 
 to him for collection, though his act 
 was clearly criminal, and the money 
 was apparently received by him other- 
 wise than In his professional capacity. 
 New York Bar Assoc, v. Chappell, 
 131 App. Div. 69, 115 N. Y. S. 868. 
 In a subsequent case the same court 
 said: "Attorneys who are guilty of 
 fraud and deceit in their relations 
 with others, even in their private 
 transactions, should not be allowed to 
 escape discipline when the utmost 
 good faith and highest degree of hon- 
 
 esty is required from members of the 
 profession." Matter of Alexander, 
 137 App. Div. 770, 122 N. Y. S. 479.. 
 See also Matter of Langslow, 167 N, 
 Y. 314, 320, 60 N. E. 590. Under a. 
 recent statute (Laws of 1912, ch. 253, 
 amending judiciary law, § 88), the 
 power of the court to discipline an 
 attorney who has been guilty of "pro- 
 fessional misconduct, malpractice,, 
 fraud, deceit, crime or misdemeanor, 
 or of any conduct prejudicial to the 
 administration of justice,'' may be 
 exercised whether in the performance 
 of the act he was acting as attorney 
 for himself or for another. Matter 
 of Heymann, 156 App. Div. 73, 14» 
 N. Y. S. 1065. 
 
 B In re Radford, 168 Mich. 474, 134 
 N. W. 472. 
 
 8 In re Evans, 94 S. C. 414, 78 S. E. 
 277. 
 
 7 See infra, § 854. 
 
 8 Ex p. Wall, 107 U. S. 306, 2 S. Ct.. 
 569, 27 U. S. (L. ed.) 552; People v. 
 Humbert, 51 Colo. 60, 117 Pac. 139; 
 Underwood v. Com. 105 S. W. 151, 32: 
 
§ 850] 
 
 GROUNDS rOE DISBARMENT. 
 
 1261 
 
 Merely discreditable acts, if not infamous and not connected with 
 an attorney's duties, will not give the court jurisdiction to strike 
 him from the roll.' Since it is presumed that, upon the admission 
 of an attorney to the bar, the court inquired into his character, 
 charges of misconduct in transactions occurring before he was 
 admitted to the bar should not be considered in proceedings for 
 his disbarment,"^" though if such misconduct is so serious that, if 
 it had been disclosed, it would have prevented his admission, it 
 may constitute grounds for his disbarment.*^ 
 
 § 850. Moral Delinquency. — As proof of a good moral char- 
 acter is an indispensable requisite for admission to the bar,'^ the 
 continued possession thereof is equally essential,'' and an attorney 
 may be disbarred for misconduct, professional or nonprofes- 
 sional,'* which shows that he has forfeited his claim thereto.'* 
 But, in order to warrant the revocation of an attorney's license 
 
 Ky. L. Rep. 32; In re Post, 54 Hun 
 634 mem., 7 N. Y. S. 438; State v. 
 Byrkett, 4 Ohio Dec. 89 ; Ex p. Stein- 
 man, 95 Pa. St. 220, 40 Am. Rep. 637, 
 reversing 8 W. N. C. 296. 
 
 9 In re Dickens, 67 Pa. St. 169, 5 
 Am. Rep. 420; State v. McClaugh- 
 erty, 33 W. Va. 250, 10 S. E. 407. 
 
 An accusation whicli charges an at- 
 torney with liaving accepted payment 
 to procure a confession from one ac- 
 cused of murder, while his trial was 
 pending, for publication in a news- 
 paper, with the understanding that 
 such confession would be attested by 
 the judge and the district attorney, 
 which scheme, however, was not car- 
 ried out, is not ground for disbarment, 
 the attorney not having been counsel 
 for the prisoner. In re Haymond, 
 121 Cal. 385, 53 Pac. 899. 
 
 An attorney who is also the editor 
 ■of a newspaper cannot be disbarred for 
 a misrepresentation of facts, appear- 
 ing in his newspaper, and connected 
 •with the trial of a cause in the court 
 
 in which he practices. In re Greevy, 
 4 W. N. C. (Pa.) 308. 
 
 IC In re Evans, 94 S. C. 414, 78 S. 
 E. 277. 
 
 11 In re Platz, (Utah) 132 Pac. 390; 
 Dormenon's Case, 1 Mart. 0. S. (La.) 
 129, in which case the fact that an 
 attorney before his admission had 
 been engaged in aiding and heading 
 a murderous insurrection of slaves, 
 was held to be a sufficient ground for 
 striking his name from the roll. 
 
 And see In re Elliott, 18 S. D. 264, 
 100 N, W. 431. See §§ 839, 840. 
 
 12 See supra, % 34. 
 
 13 Underwood v. Com., 105 S. W. 
 151, 32 Ky. L. Rep. 32, and cases in 
 the following notes. 
 
 1* Bar Ass'n of Boston v. Green- 
 hood, 168 Mass. 169, 46 N. E. 568; In 
 re Radford, 168 Mich. 474, 134 N. W. 
 472. 
 
 15 In re Wall, 13 Fed. 814; In re 
 Boone, 83 Fed. 944; State v. Mosher, 
 ]28 la. 82, 5 Ann. Cas. 984, 103 N. W. 
 105; State v. Kohrig, (la.) 139 N. W. 
 
1262 GEOTJNUS FOE DISBAEMENT. [§ 851 
 
 for want of a good moral character, his moral delinquencies must 
 be such as to unfit him for the proper discharge of the trust re- 
 posed in him; thus, it must appear that he is lacking in common 
 honesty,'* or veracity." It is not necessary, however, that the at- 
 torney should have been guilty of a contempt, or a crime ; '' but it 
 will be sufficient if he has been guilty of unprofessional conduct 
 involving moral turpitude,'* and this is especially true where he 
 has manifested no regret therefor.^" "There is no class of men 
 among whom moral delinquency is more marked and disgraceful 
 than among lawyers. Among merchants, so many honest men 
 become involved through misfortune that the rogue may hope to 
 take shelter in the crowd and be screened from observation. Not 
 so the lawyer. If he continues to seek business, he must find his 
 employment in lower and still lower grades ; and will soon come 
 to verify and illustrate the remark of Lord Bolingbroke that, 
 'the profession of the law, in its nature the noblest and most 
 beneficial to mankind, is in its abuse and abasement the most 
 sordid and pernicious.' " ' 
 
 § 851. Extent of Rule as to Moral Delinquency. — To war- 
 rant the removal of an attorney for moral delinquency, it must 
 appear that he is unfit and unsafe to be trusted with the duties 
 
 908; In re Smith, 73 Kan. 743, 85 Laughlin, 10 Mo. App. 1. See also In 
 
 Pac. 584 ; Bar Ass'n of Boston v. re Percy, 36 N. Y. 651. 
 
 Greenhood, 168 Mass. 169, 46 N. E. 18 Baker v. Com., 10 Bush (Ky.) 
 
 568; In re Percy, 36 N. Y. 651. 592; State w. Root, 5 N. D. 487, 67 N. 
 
 16 See the two sections following. W. 590, 57 Am. St. Eep. 568 ; In re 
 
 17 State V. Mosher, 128 la. 82, 5 Thatcher, 80 Ohio St. 492, 89 N. E. 39. 
 Ann. Cas. 984, 103 N. W. 105 ; State v. 19 In re Eadford, 168 Mich. 474, 
 Byrkett, 4 Ohio Dec. 89. 134 N. W. 472; In re Percy, 36 N. Y. 
 
 It would be monstrous to say that 651; In re Marsh, (Utah) 129 Pac. 
 
 one whose character for truth and 411. 
 
 veracity is so utterly gone that no one 20 In re Radford, 168 Mich. 474, 
 
 would believe him on oath, should re- 134 N. W. 472. 
 
 main an officer of a court of record, l In re Radford, 168 Mich. 474, 134 
 
 having special access to, its files and N. W. 472, quoting from Sharswood's 
 
 records, and great facilities for de- Essay on Professional Ethics, pp. 170, 
 
 ceiving the court and obstructing the 171. See also Law Lectures by Shars- 
 
 administration of justice. State v. wood, pp. 29, 30. 
 
§ 851] GROUNDS FOE DISBABMENT. 1263 
 
 and responsibilities of the legal profession.^ And it has been said 
 that an attorney may be so unfitted by a series of unprofessional 
 acts which show him to be unworthy of the confidence of the mem- 
 bers of the bar, and which are disgraceful to himself as a man.* 
 But "it is not for every moral offense which may leave a stain upon 
 character that courts can summon an attorney to account. Many 
 persons, eminent at the bar, have been chargeable with moral de- 
 linquencies which were justly a cause of reproach to them; some 
 have been frequenters of the gaming table, some have been dis- 
 solute in their habits, some have been indifferent to their pecuniary 
 obligations, some have wasted estates in riotous living, some have 
 been engaged in broils and quarrels disturbing the public peace; 
 but for none of these things could the court interfere and summon 
 an attorney to answer, and if his conduct should not be satisfac- 
 torily explained, proceed to disbar him. It is only for that moral 
 delinquency which consists in a want of integrity and trustworthi- 
 ness, and renders him an unsafe person to manage the legal busi- 
 ness of others, that the courts can interfere and summon him be- 
 fore them." * "What is a good moral character ?" asks the court 
 in another case. "If judges would permit themselves to go into 
 the vast domain of morals and require lawyers, practicing in their 
 courts, to conform to their ideas of the standard of morals neces- 
 sary to be maintained by attorneys at law, what man would be 
 safe from the annoyance or possible disgrace of disbarment pro- 
 ceedings ? The drinking of intoxicating liquors, the playing of 
 games of chance, betting on horse races or elections, the use of 
 profane language, and many other vices are deemed moral or 
 immoral, as they conform to or fall short of the standard of morals 
 adopted by individuals. By what standard is the moral character 
 of an attorney to be judged? Is it to be at the mercy of the 
 whims and prejudices of the courts of this state, who can travel 
 at will through the field of morals in passing judgment upon 
 their fellow-men ? Certainly no such condition was ever contem- 
 
 S State V. Mosher, 128 la. 82, 5 Ann. s Dickens's Case, 67 Pa. St. 169, 5 
 
 Cas. 984, 103 N. W. 105; Baker i: Am. Kep. 420. 
 
 Com., 10 Bush (Ky.) 592; State v. « Ex p. Wall, 107-11. S. 306, 2 S. 
 
 MeClaugherty, 33 W. Va. 250, 10 S. Ct. 569, 27 U. S. (L. ed.) 552. 
 E. 407. 
 
1264 GEOUM'DS FOE DISBARMENT. [§§ 852, 853 
 
 plated. In the opinion of the court, the 'good moral character' 
 required to be possessed by an attorney at law has relation only 
 to his character for integrity and honesty; it embraces only those 
 moral traits of integrity and honesty which fit him to transact 
 faithfully and honestly the business of an attorney at law." * It 
 would be carrying the doctrine too far to hold that an attorney 
 must be free from every vice, and to strike him from the roll of 
 attorneys because he may indulge in irregularities affecting to 
 some extent his moral character, but not affecting his personal or 
 professional integrity.® 
 
 § 852. Dishonesty. — It is generally conceded, where moral 
 delinquency is recognized as a ground for disbarment, that the 
 want of common honesty in an attorney constitutes such a delin- 
 quency.'' Thus, where an attorney receives money under an em- 
 ployment in a business transaction, and not professionally, his 
 wrongful detention thereof constitutes a sufficient ground for his 
 disbarment.' So, an attorney may be disbarred where he re- 
 ceives money in his official capacity, for a certain purpose, with 
 the intention of converting the same to his own use, and thereby 
 frustrating the purpose of the payer.' 
 
 Criminal Misconduct. 
 
 § 853. Generally. — While the commission of crime will, as 
 a rule, afford sufficient ground for the disbarment of an attorney," 
 
 5 state V. Byrkett, 4 Ohio Dec. 89. [n re Moore, 76 N. H. 227, 81 Atl. 703. 
 And see to the same effect Dickens's New York. — In re Titus, 66 Hun 
 Case, 67 Pa. St. 169, 5 Am. Rep. 420. 632 mem., 21 N. Y. S. 724 ; New York 
 
 6 State V. McClaugherty, 33 W. Va. Bar Assoc, v. Chappell, 131 App. Div. 
 250, 10 S. E. 407. 69, 115 N. Y. S. 868; In re Pascal, 
 
 "> Illinois. — People v. Salomon, 184 146 App. Div. 836, 131 N. Y. S. 823. 
 
 III. 490, 56 N. E. 8] 5. Oftjo.— State v. Byrkett, 4 Ohio 
 
 loiea. — State v. Mosher, 128 la. 82, Dec. 89. 
 
 5 Ann. Gas. 984, 103 N. W. 105. 8 In re Wilson, 79 Kan. 674, 17 Ann. 
 
 Michigan. — In re Radford, 168 Cas. 690, 300 Pac. 635, 21 L.R.A. 
 
 Mich. 474, 134 N. W. 472. (N.S.) 517; New York Bar Assoc, ti. 
 
 New Hampshire.— In re Delano, 58 Chappell, 131 App. Div. 69, 115 N. Y. 
 
 N. H. 5, 42 Am. Kep. 555; In re S. 868. 
 
 Hobbs, 75 N. H. 285, 73 Atl. 303; In 9 In re Orwig, 31 Leg. Int. (Pa.) 20. 
 
 re Allen, 75 N. H. 301, 73 Atl. 804; 10 See infra, §§ 854-864. 
 
§ 854] 
 
 GEOUNDS FOE DISBAEMENT. 
 
 1265 
 
 especially when there has been a conviction thereof,** it is 
 not necessary that crime should be committed in order to 
 warrant the revocation of a license to practice law; *^ indeed, dis- 
 barment may be ordered for misconduct for which an attorney 
 is not subject even to a civil liability.*' Nor, on the other hand, 
 will disbarment proceedings be prevented because of the fact that 
 one guilty of crime is also subject to punishment for his violation 
 of the penal laws,** for the purpose of disbarment proceedings is 
 to rid the bar of an unworthy member, not to punish him.** 
 
 § 854. Nature of Crime Warranting Disbarment. — 
 
 In most jurisdictions the fact that an attorney has committed a 
 crime, the nature of which is inconsistent with a continuance of 
 that good moral character which is required on admission to the 
 bar, will constitute a sufficient ground for disbarment,*^ and this is 
 especially true where there has been a trial and conviction.*'' Thus, 
 an attorney may be disbarred for any infamous crime,*' as, for 
 instance, perjury or subornation of perjury,** forgery,^" larceny,* 
 
 11 See infra, § 860. 
 
 12 In re Wall, 13 Fed. 814; In re 
 Boone, 83 Fed. 944; In re Harden- 
 brook, 135 App. Div. 634, 121 N. Y. 
 S. 250, affirmed 199 N. Y. 539, 92 N. E. 
 1086; In re Thatcher, 80 Ohio St. 492, 
 89 N. E. 39. 
 
 13 In re Boone, 83 Fed. 944. 
 
 14 In re Danford, 157 Cal. 425, 108 
 Pac. 322. 
 
 15 See supra, §§ 760, 761. 
 
 16 Ex p. Cole, 1 McCrary 405, 6 Fed. 
 Cas. Jfo. 2,973; Ex p. Steinman, 95 
 Pa. St. 220. 40 Am. Eep. 637, revers- 
 ing 8 W. N. C. 296 dictum; In re 
 Hirst, 1 W. N. C. (Pa.) 18; In re 
 Elliott, 18 S. D. 264, 100 N. W. 
 431. 
 
 "See infra, § 860. 
 
 18 State Bank r. Stryker, 1 Wheel. 
 Crim. (N. Y.) 330. 
 
 19 People V. Brown, 218 111. 301, 75 
 N. E. 907; In re Lamb, ]05 App. Div. 
 462, 94 N. Y. S. 331; In re Joseph, 
 
 Attys. at L. Vol. II.— 80. 
 
 135 App. Div. 589, 120 N. Y. S. 793; 
 State V. Holding, 1 McCord L. (S. 
 C.) 379. And see also supra, §§ 818- 
 827. 
 
 ^ti Colorado. — People v. Walkey, 26 
 Colo. 483, 58 Pac. 591. 
 
 Indiana. — Ex p. Walls, 64 Ind. 
 461. 
 
 Kentucky. — Nelson v. Com., 128 Ky. 
 779, 109 S. W. 337, 16 L.E.A.(N.S.) 
 272, 33 Ky. L. Eep. 143. 
 
 Montana. — In re Thresher, 33 Mont. 
 441, 8 Ann. Cas. 845, 84 Pac. 876, 114 
 Am. St. Eep. 834. 
 
 Hew York. — In re Eosenthal, 137 
 App. Div. 772, 122 N. Y. S. 471; In re 
 Pascal, 146 App. Div. 836, 131 N. Y. 
 S. 823. 
 
 Oregon. — Ex p. Kindt, 32 Ore. 474, 
 52 Pac. 187. 
 
 1 People V. Manns, 28 Colo. 83, 62 
 Pac. 840; People v. Schiutz, 181 111. 
 574, 54 N. E. 1011; In re Kenney, 
 155 App. Div. 890, 140 N. Y. S. 314. 
 
1266 
 
 GEOUIVDS FOE DISBAEMENT. 
 
 [§ 855 
 
 conspiracy,* or embezzlement.' So, disbarment may be ordered 
 as against an attorney who participates in a lynching,* massacre,* 
 riot,® or duel ; '' or who aids in the escape of a convict.* 
 And disbarment has been ordered, in some instances, for a 
 violation of the provisions of the bankruptcy law,' false pre- 
 tenses," bribery," keeping a bawdy house, ^* the unlawful sale of 
 intoxicating liquor,^* and other misdemeanors.** Even nonindict- 
 able offenses may constitute ground for disbarment.** Nor is it 
 material whether a criminal offense which is alleged as a ground 
 for disbarment, was committed in connection with matters in 
 which the attorney was acting in a professional capacity, or not.** 
 
 § 855. Blackmail. — An attorney should not abuse either his 
 authority or the process of the court," and where, whether in his 
 client's affairs or his own, he is guilty of blackmail, or an attempt 
 to blackmail, he will be disbarred.*' Thus where an attorney, who 
 
 « In re Burke, 9 Ohio Cir. Dec. 350, 
 17 Ohio Cir. Ct. 315. 
 
 3 In re Thresher, 33 Mont. 441, 8 
 Ann. Cas. 845, 84 Pac. 876, 114 Am. 
 St. Rep. 834; In re Simpson, 9 N. D. 
 379, 83 N. W. 541. And see also 
 supra, §§ 804-806. 
 
 4 Ex p. Wall, 107 U. S. 265, 2 S. 
 Ct. 569, 27 U. S. (L. ed.) 552, 27 Alb. 
 L. J. 406, 5 Ky. L. Rep. 2, affirming 
 13 Fed. 814, 27 Alb. L. J. 91. 
 
 6 In re Dormenon, 2 Wheel. Crim. 
 (N. Y.) 344. 
 
 Bin re Wall, 13 Fed. 814; In re 
 Jones, 12 Pa. Co. Ct. 229, 2 Pa. Dist. 
 Ct. 538. 
 
 T Smith V. State, 1 Yerg. (Tenn.) 
 228. 
 
 8 State V. Burr, 19 Neb. 593, 28 N. 
 W. 261. 
 
 9 In re Naphtaly, 14 Cent. L. J. 
 (Cal.) 96; In re Joseph, 135 App. 
 Div. 58&, 120 N. Y. S. 793. 
 
 10 People V. Ford, 54 111. 520 ; In re 
 Weed, 26 Mont. S07, 68 Pac. 1115. 
 
 "In re 0'Conn^U, 174 Mass. 253, 
 
 53 N. E. 1001, 54 N. E. 558; In re 
 Wellcome, 23 Mont. 213, 58 Pac. 47; 
 Matter of Boland, 127 App. Div. 746, 
 111 N. Y. S. 932. 
 
 12 In re Marsh, (Utah) 129 Pac. 
 411. 
 
 13 Underwood v. Com., 105 S. W. 
 151, 32 Ky. L. Rep. 32. 
 
 14 N. Y. Penal Law, § 273. In re 
 Wellcome, 23 Mont. 450, 59 Pac. 445. 
 
 The loords "misdemeanor in his pro- 
 fessional capacity," in the statute 
 relating to attorneys, do not mean of- 
 fenses punishable by fine and impris- 
 onment in the county jail, but merely 
 professional misbehavior. In re Bow- 
 man, 7 Mo. App. 569. 
 
 IBU. S. V. Porter, 2 Cranch (C. C.) 
 60, 27 Fed. Cas. No. 16,072. Compare 
 In re Stryker, 1 Wheel. Crim. (N. Y.) 
 330. 
 
 16 In re Wellcome, 23 Mont. 140, 58 
 Pac. 45. 
 
 "See supra, § 817. 
 
 18 In re Coffey, 123 Cal, 522, 56 Pac. 
 448; People v. Varnum, 28 Colo. 349, 
 
§ 856] GKOUNDS FOE DISBAUMENT. 1267 
 
 was employed to prosecute an unliquidated claim for a contingent 
 fee, wrote to the defendant under an assumed name, and threat- 
 ened him with a prosecution for perjury, it was held that the fact 
 that he was employed as attorney in the cause, was no defense to 
 a charge of blackmail.^' So, where an attorney for a deserted 
 wife wrote letters to the husband implying that if he did not pay 
 certain money and turn over certain property to the wife, and 
 induce his paramour, with whom, it was claimed, he was living in 
 another state in adultery, to secure the dismissal of certain civil 
 proceedings on a note given by the husband to such paramour, 
 criminal proceedings would be instituted against them, and they 
 would be extradited and tried, it was held that such acts con- 
 stituted extortion, without reference to the justness of the wife's 
 claim or the attorney's intention, requiring the attorney's suspen- 
 sion from practice.^" It is also blackmail, for which disbarment 
 will be ordered, for an attorney to threaten a former client with 
 a prosecution for the violation of the laws of the state, which 
 would tend to disgrace him, unless he paid to the attorney a cer- 
 tain sum claimed for services.^ 
 
 § 856. Conviction of Crime as Ground for Disbarment. — 
 
 A conviction of crime is usually considered a sufficient ground for 
 disbarment ; * and one convicted of crime in a federal court, may 
 
 64 Pae. 202; In re Sherin, 28 S. D. from the roll if convicted of felony, 
 
 420, 133 N. W. 701, modifying 27 S. or of a, misdemeanor involving want 
 
 D. 232, Ann. Cas. 1913D 446, 130 IST. of integrity, even though the judg- 
 
 W. 761. See also In re Huston, 127 ment be arrested or reversed for er- 
 
 App. Div. 492, 111 N. Y. S. 731. ror; and also (without a previous 
 
 19 People V. Wickes, 112 App. Div. conviction) if he is guilty of gross 
 39, 20 N. Y. Crim. 9, 98 N. Y. S. 163. misconduct in his profession, or of 
 
 20 In re Sherin, 27 S. D. 232, Ann. acta which, though not done in his 
 Cas. 1913D 446, 130 N. W. 761. professional capacity, gravely affect 
 
 1 People V. Barnum, 28 Colo. 349, 64 his character as an attorney; but in 
 Pae. 202. the latter case, if the acts charged are 
 
 2 In re Coffey, 123 Cal. 522, 56 Pae. indictable, and are fairly denied, the 
 448; Walker v. Com., 8 Bush (Ky.) court will not proceed against him 
 86; In re Kirby, 10 S. D. 414, 73 N. until he has been convicted by a jury, 
 W. 907, 39 L.R.A. 856. and will in no case compel him to 
 
 In England the rule seems to be answer under oath to a charge for 
 that an attorney will be stricken which he may be indicted. See 
 
1268 
 
 QKOUNDS JTOB DISBARMENT. 
 
 [§ 856 
 
 be disbarred or otherwise disciplined in a state court.' In most 
 jurisdictions the conviction of crime constitutes a statutory ground 
 of disbarment, but, as a rule, statutes of this character are mere- 
 ly declaratory of the law as it existed prior to their enactment.* 
 A confession or plea of guilty is, of course, the equivalent of a 
 conviction by jury." As to the nature of the crime conviction of 
 which will warrant disbarment, in the absence of a statutory enu- 
 meration, it would seem that it must tend to show that one who is 
 guilty thereof is unfitted to occupy the office of an attorney at law.* 
 In most instances, however, where conviction is made a statutory 
 ground for disbarment, the statutes specify particular crimes, or 
 designate a classification thereof, which shall constitute a suffi- 
 cient cause for removal. Thus, it is commonly provided that an 
 attorney may be disbarred where he has been convicted of a fel- 
 ony,'' or of treason,* or of any other crime involving moral turpi- 
 
 Anonymous, 3 N. & P. 389 ; Matter of 
 
 , 5 B. & Ad. 1088, 27 E. C. L. 
 
 275 ; Stephens V. Hill, 10 M. & W. 28 ; 
 Matter of King, 8 Q. B. 129, 55 E. C. 
 L. 129; Matter of Garbett, 18 C. B. 
 403, 86 E. C. L. 403; Matter of Blake, 
 3 El. & El. 34, 107 E. C. L. 34; Re 
 
 Hill, L. E. 3 Q. B. 543; Ex p. , 
 
 2 Dowl. 110. 
 
 3 In re Kobinson, 140 App. Div. 329, 
 125 N. Y. S. 193; State v. Biggs, 52 
 Ore. 433, 97 Pao. 713; In re Kirby, 10 
 S. D. 414, 73 N. W. 907, 39 L.E.A, 
 856. 
 
 4 See supra, § 759. See also Nelson 
 V. Com., 128 Ky. 779, 109 S. W. 337, 
 16 L.R.A.(N.S.) 272, 33 Ky. L. Rep. 
 143. But see In re Darmstadt, 35 
 App. Div. 285, 55 N. Y. S. 22, in which 
 it was held that the statute was not 
 retroactive so as to preclude the at- 
 torney from showing that the crime 
 involved no moral turpitude. 
 
 6 Walker v. Com., 8 Bush (Ky.) 86; 
 Nelson v. Com., 128 Ky. 779, 109 S. 
 W. 337, 16 L.R.A.(N.S.) 272, 33 Ky. 
 L. Rep. 143. 
 
 But «. demurrer to the evidence, 
 which was not allowable, is not an 
 admission of guilt. In re Ebbs, 150 
 N. C. 44, 17 Ann. Cas. 592, 63 S. E. 
 190, 19 L.R.A.(N.S.) 892. 
 
 6 See Ex p. Thompson, 32 Ore. 499, 
 52 Pac. 570, 40 L.R.A. 194. 
 
 7 Colorado. — People v. Adams, 26 
 Colo. 412, 58 Pac. 603; People v. 
 Bryce, 36 Colo. 125, 84 Pac. 816. 
 
 Kentucky. — Nelson v. Com., 127 Ky. 
 779, 109 S. W. 337, 16 L.R.A.(N.S.) 
 272, 33 Ky. L. Rep. 143. 
 
 Michigan. — In re McCarthy, 42 
 Mich. 71, 51 N. W. 963. 
 
 Minnesota. — In re Madigan, 66 
 Minn. 9, 68 N. W. 1102. 
 
 New York. — In re E., 65 How. Pr. 
 171. 
 
 Oregon. — Ex p. Thompson, 32 Ore. 
 499, 52 Pac. 570, 40 L.R.A. 194; State 
 V. Biggs, 52 Ore. 433, 97 Pac. 713. 
 
 South Dakota. — In re Kirby, 10 S. 
 D. 322, 73 N. W. 92, 39 L.E.A. 856, 
 859. 
 
 'Nelson v. Com., 127 Ky. 779, 109 
 S. W. 337, 16 L.R.A.(N.S.) 272, 33 
 
§ 857] 
 
 GROUNDS FOE DISBARMENT. 
 
 1269 
 
 tnde.* And it has been held that an attorney may be disbarred 
 where he has been convicted of murder/" forgery/* embezzle- 
 ment/* receiving stolen property/^ sending indecent matter 
 through the mails/* obstructing the administration of justice/* 
 bastardy/* and other crimes punishable by imprisonment ; " and 
 in some instances the conviction of certain crimes works, of it- 
 i^elf, a disqualification and requires disbarment/' 
 
 § 857. Conviction Involving Moral Turpitude. — It is pro- 
 vided by statute in several jurisdictions that an attorney may be 
 disbarred where he has been found guilty of unprofessional con? 
 duct involving moral turpitude ; *" but misconduct of this charac- 
 
 Ky. L. Eep. 143; Com. v. Eoe, 129 Ky. 
 650, 112 S. W. 683, 19 L.R.A.(N.S.) 
 413. 
 
 9 See the following section. 
 
 le Matter of Patrick, 136 App. Div. 
 450, 320 N. Y. S. 1006. 
 
 "Nelson v. Com., 327 Ky. 779, 109 
 S. W. 337, 16 L.E.A.(N.S.) 272, 33 
 Ky. L. Eep. 143. 
 
 13 People V. Bryce, 36 Colo. 125, 84 
 Pac. 816. 
 
 13 In re Kirby, 10 S. D. 322, 73 N. 
 W. 92, 39 L.E.A. 856, 859. 
 
 14 People V. Propper, 220 111. 455, 77 
 N. E. 208. 
 
 15 See supra, §§ 816-838. See also 
 In re Robinson, 140 App. Div. 329, 
 125 N. Y. S. 193. 
 
 16 People V. Propper, 220 111. 455, 
 77 N. E. 208. Compare State v. Byr- 
 kett, 4 Ohio Dec. 89, 3 Ohio N. P. 28. 
 
 "In re Niles, 5 Daly (N. Y.) 465, 
 48 How. Pr. 246. 
 
 18 See infra, § 858. 
 
 19 United States.— In re Kirby, 84 
 Fed. 606; U. S. v. Parks, 93 Fed. 414. 
 
 California. — In re Coffey, 123 Cal. 
 522, 56 Pac. 448. 
 
 Idaho. — In re Henry, 35 Idaho 755, 
 99 Pac. 1054, 21 L.R.A.(N.S.) 207. 
 
 Montana. — In re Thresher, 33 Mont. 
 441, 8 Ann. Cas. 845, 84 Pac. 876, 114 
 Am. St. Eep. 834. 
 
 ■ Ohio.— In re Thatcher, 80 Ohio St. 
 492, 89 N. E. 39; In re Dellenbaugh, 
 9 Ohio Cir. Dec. 325, 17 Ohio Cir. Ct. 
 106. 
 
 Oregon. — Ex p. Biggs, 52 Ore. 433, 
 97 Pac. 713. 
 
 South Dakota. — In re Kirby, 10 S., 
 D. 322, 73 N. W. 92, 39 L.E.A. 856, 
 859. 
 
 Not Cruel or XJwusual Punishment, 
 — A judgment of disbarment upon 
 conviction for a misdemeanor involv- 
 ing moral turpitude, in addition to a 
 fine imposed for the offense, is not 
 cruel or unusual punishment, within 
 the constitutional prohibition. In re 
 Coffey, 123 Cal. 522, 56 Pac. 448. 
 
 Extent of Discipline. — Under Ore- 
 gon Code, § 1047, authorizing the re- 
 moval or suspension of an attorney on 
 his conviction of any felony or mis- 
 demeanor involving moral turpitude,, 
 of which the record of his convictioa 
 is conclusive evidence, the court may 
 go behind the record of conviction to 
 determine the extent of the discipline 
 to be administered. State v. Mason,. 
 29 Ore. 18, 43 Pac. 651. 
 
■1270 GROUNDS FOE DISBARMENT. [§ 858 
 
 ter would warrant disbarment irrespective of statutory aiithority.*" 
 "Moral turpitude," it has been said, includes everything which 
 is done contrary to justice, honesty, modesty, or good morals.^ 
 Thus, it has been held that an attorney may be disbarred where 
 he has been convicted of attempting to extort money or other prop- 
 erty from another by threats.* Libel is also a misdemeanor which 
 involves moral turpitude, and for which an offender may be dis- 
 barred.* Under a statute which authorized the removal of an at- 
 torney where he had been convicted of a felony or a misdemeanor 
 involving moral turpitude, it was held that the words "felony" 
 and "misdemeanor" were used in their statutory sense, and that 
 the conviction of an offense in a federal court for "conspiracy to 
 suborn perjury" was not conclusive, in a disbarment proceeding, 
 of the commission of an act warranting disbarment, there being 
 no such offense known to the law of the state.* And in another case 
 it was held that a statute which provided for disbarment on con- 
 viction of a crime involving moral turpitude, or for unprofes- 
 sional conduct of the same character, did not provide separate and 
 distinct causes for removal.^ 
 
 § 858. Conviction as Ipso Facto Disqualification or Dis- 
 barment. — The New York judiciary law provides that "any 
 person, being an attorney and counselor at law, who shall be 
 convicted of a felony, shall, upon such conviction, cease to be an 
 attorney and counselor at law, or to be competent to practice 
 law as such. Whenever any attorney and counselor at law 
 shall be convicted of a felony, there may be presented to the 
 appellate division of the supreme court a certified or exem- 
 plified copy of the judgment of such conviction, and thereupon 
 the name of the person so convicted shall, by order of the 
 court, be stricken from the roll of attorneys." * But, although 
 
 20 See supra, § 759. 4 Ex p. Biggs, 52 Ore. 433, 97 Pac. 
 
 1 In re Hopkins, 54 Wash. 569, 103 713. 
 
 Pac. 805. 5 In re Dellenbaugh, 9 Ohio Cir. Dee. 
 
 2 In re Coffey, 123 Cal. 522, 56 Pac. 325, 17 Ohio Cir. Ct. 106. 
 
 448. And see also supra, § 855. e-^ew York Judiciary Law, §§ 88 
 
 3 State f. Mason, 29 Ore. 18, 43 Pac. (3), 477, as amended by L. 1912, 
 651, 54 Am. St. Rep. 772. And see c. 253. See also In re Kristeller, 154 
 aIso supra, §§ 788-790. App. Div. 556, 139 N. Y. S. 64. This 
 
§§ 859, 860] GROUNDS foe disbaemewt. 1271 
 
 the Xew York law also provides that a misdemeanor or other 
 crime shall constitute ground for removal/ a conviction of such 
 crimes does not, of itself, work a disbarment.' A ITorth Car- 
 olina statute provides that an attorney at law must be removed 
 from ofEce "ui^on his being convicted of a crime punishable by 
 imfirisonment in the penitentiary." * 
 
 § 859. Conviction in Another Jurisdiction. — An attorney 
 lias been disbarred where it appeared that, prior to his admission, 
 Jie had been convicted of embezzlement in another state.^" But it 
 would seem that the mere fact of having been convicted of a crime 
 in another state is not, in itself, necessarily a sufficient ground 
 for disbarment, but that such fact will be considered in connec- 
 tion with the other evidence in arriving at a conclusion ; *^ and dis- 
 barment will not be ordered where the conviction occurred many 
 jears before the respondent's admission to the bar, and it appears 
 that he has led an upright life since that time.^^ And under a 
 Ivorth Carolina statute which provides that the conviction of cer- 
 tain crimes shall work a disbarment,^' it has been held that the 
 ■court is not thereby authorized to disbar an attorney because of his 
 having been convicted of a crime in another state.^* 
 
 § 860. Necessity of Conviction. — In several jurisdictions it 
 is held that there must be a trial and conviction for criminal mis- 
 statute is mandatory upon the court. 9 P. L. of North Carolina, c. 941. 
 Matter of Patrick, 130 App. Div. 450, See also Matter of Ebbs, 150 N. C. 44, 
 120 N. Y. S. 1006. 17 Ann. Cas. 592, 63 S. E. 190, 19 
 
 The regularity of the proceedings L.K.A. (N.S.) 892. 
 
 hy which the attorney was convicted in itt People v. Gillmore, 214 111. 569, 
 
 another court having jurisdiction of 73 N. E. 737, 69 L.R.A. 701. 
 
 the offense, cannot be attacked in the n People v. Payson, 215 111. 476, 74 
 
 disbarment proceedings in the absence N. E. 383. See also People u. Hahn, 
 
 •of an allegation that the criminal 197 111. 137, 64 N. E. 342; People v. 
 
 court did not have jurisdiction over Propper, 220 111. 455, 77 N. E. 208; 
 
 his person or that he was not the per- Smith v. State, 1 Yerg. (Tenn.) 228. 
 
 son named in the indictment. Matter 13 People v. Coleman, 210 111. 79, 
 
 of Patrick, 136 App. Div. 450, 120 N. 71 N. E. 693. 
 
 Y. S. 1006. 1' See the preceding section. 
 
 TN. Y. Judiciary Law, § 88 (2). 14 In re Ebbs, 150 N. C. 44, 17 Ann. 
 
 8 In re Robinson, 140 App. Div. 329, Cas. 592, 63 S. E. 190, 19 L.E.A. 
 
 325 N. Y. S. 193. (N.S.) 892. 
 
1272 
 
 GEOUNDS FOE DISBAEMENT. 
 
 [§ 860 
 
 conduct before disbarment will be ordered because thereof,** and 
 this is especially true as to those crimes which, although they seri- 
 ously affect the moral character of those who commit them, have- 
 no direct connection with an attorney's practical and immediate 
 relation to the courts ; and in some instances the requirement that 
 there must first be a conviction is confined to crimes of this char- 
 acter,*® the power of the court being limited to a suspension of 
 the attorney until the case may be tried on indictment." But con- 
 viction is frequently rendered necessary because of statutory pro- 
 visions which have been held to require it,*' and it has also been 
 held that such statutes do not deprive the court of any of its inher- 
 
 15 California. — People v. Treadwell, 
 66 Cal. 400, 5 Pac. 686; In re Tilden, 
 25 Pac. 687. See also Matter of 
 Wyatt, 102 Cal. 264, 36 Pac. 586; In 
 re Delmas, 139 Cal. xix mem., 72 
 Pac. 402; In re Lowenthal, 37 Pac. 
 526. Compare Ex p. Tyler, 107 Cal. 
 78, 40 Pac. 33. 
 
 Idaho. — In re Tipton, 4 Idaho 513, 
 42 Pac. 504. 
 
 Illinois. — People v. Comstock, 176 
 111. 192, 52 N. E. 67. 
 
 LotUsiama. — Chevalon IK Schmidt, 
 11 Rob. 91 ; Turner v. Walsh, 12 Rob. 
 383. 
 
 Missouri. — State -v. Foreman, 3 Mo. 
 602; State v. Gebhardt, 87 Mo. App. 
 542; Matter of Z., 89 Mo. App. 426. 
 
 North Carolina. — Ex p. Schenck, 65 
 N. C. 353; Kane v. Haywood, 66 N. C. 
 1. 
 
 South Dakota. — See In re Sherin, 
 27 S. D. 232, Ann. Cas. 1913D 446, 
 130 N. W. 761. 
 
 Virginia. — Ex p. Fisher, 6 Leigh 
 619. 
 
 West Virginia. — State v. Hays, 64 
 W. Va. 45, 61 S. E. 355. 
 
 16 United States.— Ex p. Wall, 107 
 U. S. 265, 2 S. Ct. 569, 27 U. S. (L. 
 ed.) 552, affirming 13 Fed. 814. 
 
 Illinois. — People v. Allison, 68 111 
 151. 
 
 Kentucky. — Beckner v. Com., 126- 
 Ky. 318, 103 S. W. 378, 128 Am. St. 
 Kep. 287. 
 
 Montana. — See In re Wellcome, 23: 
 Mont. 140, 58 Pac. 45; In re Weed, 26 
 Mont. 507, 68 Pac. 1115. 
 
 New Jersey. — ^Anonymous, 7 N. J. L. 
 162. 
 
 New York. — Rochester Bar Assoc. 
 V. Dorthy, 152 N. Y. 596, 46 N. E.. 
 835, affirming 8 App. Div. 611, 41 N> 
 y. S. 1112, 75 N. Y. St. Rep. 1480. 
 
 North Carolina. — In re Ebbs, 150' 
 N. C. 44, 17 Ann. Cas. 592, 63 S. E., 
 190, 19 L.R.A.(N.S.) 892. 
 
 Ohio. — In re Dellenbaugh, 9 Ohio- 
 Cir. Dec. 325; State v. Byrkett, 4 
 Ohio Dec. 89; Ex p. Bickley, 16 Ohio- 
 Dec. 5G9. 
 
 Pennsylvania. — Ex p. Steinman, 95 
 Pa. St. 220, 40 Am. Rep. 637, revers- 
 ing 8 W. N. C. 296. 
 
 "State V. Gebhardt, 87 Mo. App.. 
 542; State v. Reynolds, (Mo.) 158 S. 
 W. 671. 
 
 18 See the cases cited under the pre- 
 ceding notes ; and see also In re Gran- 
 ger, 15 Nev. 56; State r. Reynolds,. 
 (Mo.) 158 S. W. 671. 
 
§ 861] 
 
 GROUNDS FOE DISBARMENT. 
 
 1273 
 
 ent rights.*' It is not necessary, however, that judgment shall have 
 been entered on the conviction.'" Even in those jurisdictions 
 wherein conviction is not deemed to be a prerequisite to disbar- 
 ment for criminal misconduct,* the court may, should it see fit to 
 do so, withhold action until the matter has been determined in the 
 proper tribunal for the trial of criminal prosecutions, and it usu- 
 ally will do so where the crime charged does not grow out of any 
 act done in a professional capacity.* 
 
 § 861. Conviction Unnecessary. — But an attorney may be 
 disbarred in most jurisdictions because of criminal misconduct, 
 even though he has not been convicted thereof, where its nature 
 shows him to be unfit to discharge the duties of his ofiice f nor is 
 
 19 Ex p. Schenck, 65 N. C. 353. 
 
 20 People V. Propper, 220 111. 455, 
 77 N. E. 208. 
 
 1 See the following section. 
 
 « In re Tipton, 4 Idaho 513, 42 Pae. 
 504; Morton v. Watson, 60 Neb. 672, 
 84 N. W. 91 ; In re Newby, 76 Neb. 
 482, 107 N. W. 850; Ex p. Cowing, 26 
 Ore. 572, 38 Pae. 1090. 
 
 3 United States.— Ex p. Wall, 107 
 U. S. 265, 2 S. Ct. 569, 27 U. S. (L. 
 ed.) 552, affirming 13 Fed. 814; In re 
 Boone, 83 Fed. 963; U. S. v. Parks, 93 
 Fed. 414. 
 
 California.— 'Ex p. Tyler, 107 Cal. 
 78, 40 Pae. 33; In re Wharton, 114 
 Cal. 367, 46 Pae. 172, 55 Am. St. Rep. 
 72; In re Danford, 157 Cal. 425, 108 
 Pae. 322. 
 
 Colorado. — People v. Mead, 29 Colo. 
 344, 68 Pae. 241. 
 
 Florida. — State v. Finley, 30 Fla. 
 302, 11 So. 500. 
 
 Indiana. — Ex p. Walls, 64 Ind. 461. 
 
 lowu. — Perry v. State, 3 G. Greene 
 550; State v. Howard, 112 la. 256, 83 
 N. W. 975. 
 
 Kansas. — In re Norris, 60 Kan. 649, 
 
 57 Pae. 529 ; Matter of Smith, 73 Kan. 
 743, 85 Pae. 584. 
 
 Maine. — See Sanborn v. Kimball, 64 
 Me. 140. 
 
 Massachusetts. — See Boston Bar 
 Assoc. V. Greenhood, 168 Mass. 169, 46 
 N. E. 568. 
 
 Montana. — State v. Cadwell, 16 
 Mont. 119, 40 Pae. 176; In re Thresh- 
 er, 33 Mont. 441, 8 Ann. Cas. 845, 84 
 Pae. 876, 114 Am. St. Rep. 834. 
 
 Neio York. — Rochester Bar Assoc. 
 V. Dorthy, 152 N. Y. 596, 46 N. E. 
 835, affirming 8 App. Div. 611, 41 N. 
 Y. S. 1112. 
 
 North Carolina. — In re Ebbs, 150 
 N. C. 44, 17 Ann. Cas. 592, 63 S. E. 
 190, 19 L.R.A.(N.S.) 892. 
 
 Ohio. — In re Dellenbaugh, 9 Ohio 
 Cir. Dec. 325. 
 
 Oregon. — State v. Winton, 11 Ore. 
 456, 5 Pae. 337, 50 Am. Rep. 486. 
 
 Pennsylvania. — In re Davies, 93 Pa. 
 St. 116, 39 Am. Rep. 729; H's Case, 
 5 Pa. Dist. Ct. 539 ; Stockwell's Case, 
 7 Pa. Dist. Ct. 311; Gates's Case, 1 
 Pa. Co. Ct. 236. 
 
 South Carolina. — Watson v. Citi- 
 zens' Sav. Bank, 5 S. C. 159. 
 
1274 GROUNDS FOE DISBAEMENT. [§ 861 
 
 it necessary, in such cases, that the offender be indicted.* Con- 
 ceding that there may be good reasons for refusing to disbar an at- 
 torney at law solely because he has committed a crime entirely 
 disconnected with his official duties, until he has first been tried 
 and convicted thereof, it would seem that these reasons are not 
 present where the crime with which an attorney is charged as a 
 ground for disbarment is not only a violation of the penal law, 
 but constitutes unprofessional conduct also. Thus, it is clear that 
 an attorney may be charged with the commission of a crime, such 
 as homicide, robbery, larceny, etc., and that such charge may not 
 relate in any way to his dealings with the court or with his client ; 
 and it would seem that, in those cases, it is but fair that there 
 should be a conviction before disbarment will be ordered ; and this 
 is the theory on which many cases, which sustain this view of the 
 situation, are predicated.* Many crimes are, in themselves, pro- 
 fessional misconduct which would warrant disbarment irrespec- 
 tive of the fact that they are also a violation of the penal laws; 
 thus, for instance, as to libeling the court,® obtaining property by 
 making false representations to the client,'' certain misappropria- 
 tions of the client's funds,' offenses which tend to pervert or ob- 
 struct justice,^ certain frauds in procuring admission to the bar,** 
 and entering into certain unlawful contracts.** Misconduct of 
 this character, in whatever form it may appear, constitutes ground 
 for disbarment; and merely because it is of such a nature as to 
 also be punishable as a crime, is no good reason why the court 
 may not order disbarment because thereof, without first awaiting 
 action by the criminal tribunals,*^ imless it is otherwise provided 
 by statute.** So disbarment may be ordered while an indictment 
 
 Tennessee.— Smith v. State, 1 Yerg. 6 See supra, §§ 788-790. 
 
 ■228 ; Davis v. State, 92 Tenn. 634, 23 7 See supra, § 797. 
 
 •S. W. 59. 8 See supra, §§ 804-835. 
 
 Utah. — In re Platz, ]32 Pac. 390. 9 See supra, §§ 816-838. 
 
 4 Ex p. Wall, 107 U. S. 265, 2 S. Ct. it See supra, §§ 839-842. 
 
 569, 27 U. S. (L. ed.) 552, 27 Alb. L. n See supra, §§ 843-845. 
 
 J. 406, 5 Ky. L. Eep. 2, affirming 64 13 See the cases cited in the first 
 
 Ind. 461; State r. Winton, 11 Ore. note under this section. See also 
 
 456, 5 Pac. 337, 50 Am. Rep. 486; State v. Finley, 30 Fla. 302, 11 So. 
 
 Watson V. Citizens' Sav. Bank, 5 S. 500; State «. Mosher, 128 la. 82, 5 
 
 ■C. 159. Ann. Cas. 984, 103 N. W. 105. 
 
 6 See the preceding section, note 15. IS See the preceding section, note. 
 
§ 862] GROUNDS FOE DISBAEMENT. 1275 
 
 is pending/* though the court may in its discretion suspend the 
 disbarment proceeding to await the result of the prosecution. *° 
 So too, it has been held that the court may exercise its summary 
 jurisdiction to disbar an attorney for criminal misconduct, even 
 though the grand jury, on a presentation thereto, failed to indict 
 him, and the trial court refused to grant permission to submit the 
 questions involved to a second grand jury. "It is not necessary," 
 said the court, "that, as a condition precedent to the exercise of the 
 jurisdiction of this court in a disbarment proceeding, repeated 
 efforts be made to secure an indictment for crime. Nor will we 
 hold that it is requisite that the attorney-general appeal several 
 times to one judge, or one time to several judges, to impanel a 
 grand jury to investigate charges of bribery, where there has been 
 an investigation into the very charges which are made the foun- 
 dation for disbarment proceedings by a grand jury duly impaneled 
 under the forms of law, and specially directed to inquire into the 
 truth of such charges." ^^ Likewise an attorney may be disbarred 
 for the commission of a crime, although a criminal prosecution 
 therefor is barred hj the statute of limitations.*^ 
 
 § 862. Effect of Appeal. — The mere fact that an attorney 
 has taken an appeal or sued out a writ of error to review his con- 
 viction in a criminal prosecution, will not prevent his disbarment 
 because of such criminal misconduct, even though a supersedeas 
 has been granted ; *' and this, it seems, would be the logical situ- 
 ation in those jurisdictions where disbarment may be ordered for 
 such mJsconduct irrespective of indictment or conviction thereof.** 
 It is reasonable, however, that if the conviction should be reversed, 
 the court would take that fact into consideration on an applica- 
 tion for reinstatement,^" and it is so provided by statute in some 
 
 14 In re Shoemaker, 2 Pa. Super. re Weed, 26 Mont. 507, 68 Pac. 1115; 
 
 Ct. 27, 38 W. N. C. 414, affirming 5 Stockwell's Case, 7 Pa. Dist. Ct. 311. 
 
 Pa. Dist. Ct. 161, 38 W. N. C. 54. "In re Kirby, 84 Fed. 606; In re 
 
 "See preceding section, note 2. Kirby, 10 S. D. 322, 73 N. W. 92, 39 
 
 16 In re Wellcome, 23 Mont. 213, L.R.A. 856; In re Kirby, 10 S. D. 
 58 Pac. 47. 414, 73 N. w. 907, 39 L.E.A. 859. 
 
 17 U. S. V. Parks, 93 Fed. 414; Ex 19 See the preceding section, 
 p. Tyler, 107 Cal. 78, 40 Pac. 33; In 2C Sec infra, §§ 863, 804. 
 
1276 GEOUNDS FOE DISBARMENT. [§ 863 
 
 states.* In other jurisdictions it is held that disbarment will not 
 be ordered because of a conviction for criminal misconduct, pend- 
 ing an appeal therefrom ; ^ and this is especially, but not neces- 
 sarily, true where conviction is a prerequisite to disbarment.^ But 
 the court has inherent power to refuse an attorney who has been 
 convicted of crime, and who is required to be confined in jail pend- 
 ing his appeal, permission to appear before it as attorney for an- 
 other, even though disbarment cannot be ordered until the judg- 
 ment of conviction has- been affirmed.* 
 
 § 863. Effect of Pardon. — While a pardon "releases the 
 punishment and blots out the existence of guilt, so that in the eye 
 of the law the offender is as innocent as if he had never com- 
 mitted an offense," ° it is nevertheless subject to the limitation that 
 it does not restore offices which have been forfeited in consequence 
 of the conviction. And it has been so held as to attorneys who have 
 been disbarred because of a criminal conviction,^ for the reason 
 that the pardon does not restore their good moral character.' The 
 fact that a pardon has been granted, however, «nay be taken into 
 consideration either on the hearing of the disbarment proceedings, 
 or on an application for reinstatement,' and in some states it is so 
 provided by statute.' And it has been held that an attorney will 
 not be disbarred because of his conviction of a crime for which he 
 was subsequently pardoned, where many years have elapsed be- 
 fore the matter was brought to the attention of the court, and he 
 has behaved himself with due propriety thereafter."" So where, 
 in disbarment proceedings, an attorney alleged that his conviction 
 
 IN. Y. L. 1912, c. 253, amending 7 People v. George, 186 111. 122, 57 
 
 § 88 (2) of the N. Y. Judiciary Law. N. E. 804; People v. Gilmore, 214 111. 
 
 3 People V. Treadwell, 66 Cal. 400, 569, 73 N. E. 737, 69 L.R.A. 701 : Nel- 
 
 5 Pac. 686 ; State v. Sale, 188 Mo. 493, son v. Com., 128 Ky. 779, 109 S. W. 
 
 87 S. W. 967. 337, 16 L.R.A.(N.S.) 272. See also 
 
 3 See supra, § 860. 16 Law Notes, 185-187. 
 
 4Pedersen v. Superior Court, 149 8 In re E., 65 How. Pr. (N. Y.) 171. 
 
 Cal. 389, 86 Pac. 712. 9 N. Y. L. 1912, c. 253, amending 
 
 5 Ex p. Garland, 4 Wall. 333, 18 U. § 88 (2) of the N. Y. Judiciary Law. 
 S. (L. ed.) 366. IC People v. Coleman, 210 111. 79, 71 
 
 6 People V. Burton, 39 Colo. 164, 88 N. E. 693; In re Hirst, 1 W. N. C. 
 Pac. 1063, 121 Am. St. Rep. 1C5; In (Pa.) 18. 
 
 re . 80 N. Y. 563. 
 
% 864] 
 
 GROUNDS FOE DISBARMENT. 
 
 1277 
 
 resulted from an unfair trial, and that he was, in fact, innocent, 
 and that, because of these facts, he was pardoned by the governor, 
 it was held that a judgment of disbarment would not be entered 
 on the pleadings.*^ And in Texas it has been held that an attor- 
 ney will not be disbarred because of a conviction as to which he 
 was subsequently granted an unconditional pardon.'^ 
 
 § 864. Effect of Acquittal. — In those jurisdictions wherein 
 conviction is a prerequisite to disbarment for criminal miscon- 
 duct,*' an acquittal thereof in the criminal courts necessarily con- 
 stitutes a complete defense to disbarment proceedings based solely 
 thereon.'* But where disbarment may be ordered for criminal 
 misconduct without a conviction thereof,'* an acquittal will not, 
 of course, prevent the entry of an order of suspension or disbar- 
 ment.'® Nor is it a defense to disbarment proceedings that the 
 
 "People V. Burton, 39 Colo. 364, 
 88 Pac. 1063, 121 Am. St. Pep. 
 165. 
 
 12 Scott V. State, 6 Tex. Civ. App. 
 343, 25 S. W. 337. 
 
 13 See supra, § 860. 
 
 "People V. John, 212 111. 615, 72 
 N. E. 789; State v. Gebhardt, 87 Mo. 
 App. 542. 
 
 16 See supra, § 861. 
 
 16 People V. Mead, 29 Colo. 344, 68 
 Pac. 241; People v. Thomas, 36 Colo. 
 126, 10 Ann. Cas. 886, 91 Pac. 36; In 
 
 re , 86 jST. Y. 563 ; In re Platz, 
 
 (Utah) 132 Pac. 390. See also Peo- 
 ple V. Weeber, 26 Colo. 229, 57 Pac. 
 1079. 
 
 In Ex p. Wall, 107 U. S. 265, 2 S. 
 Ct. 569, 27 U. S. (L. ed.) 552, the 
 court said: "While it may be the 
 general rule that a previous convic- 
 tion should be had before striking an 
 attorney off the roll for an indictable 
 offense, committed by him when not 
 acting in his character of an attorney, 
 yet the rule is not an inflexible one. 
 Cases may occur in v?hich such a re- 
 
 quirement would result in allowing 
 persons to practice as attorneys who 
 ought, on every ground of propriety 
 and respect for the administration of 
 the law, to be excluded from such 
 practice. A criminal prosecution may 
 fail by the absence of a witness, or by 
 reason of a flaw in the indictment, or 
 some irregularity in the proceedings; 
 and in such cases, even in England, 
 the proceeding to strike from the roll 
 may be had. But other causes may 
 operate to shield a gross offender 
 from a conviction of crime, however 
 clear and notorious his guilt may be 
 — a prevailing popular excitement, 
 powerful influences brought to bear 
 on the public mind or on the mind of 
 the jury, and many other causes 
 which might be suggested; and yet, 
 all the time, the offender may be so 
 covered with guilt, perhaps glorying 
 in it, that it would be a disgrace to 
 the court to be obliged to receive him 
 as one of its officers, clothed with all 
 the prestige of its confidence and au- 
 thority." 
 
1278 GEOUNDS FOE DISBAKJIENT. [§ 864 
 
 criminal misconduct charged therein was submitted to a grand 
 jury which refused to find an indictment therefor." So, it has 
 been held that the entry of an nolle prosequi in a criminal prosecu- 
 tion does not constitute a defense in disbarment proceedings predi- 
 cated on the commission of the crime. ^* I^or will the reversal of 
 a judgment of conviction on a point of law, constitute such a 
 defense.^' 
 
 " In re Wellcome, 23 Mont. 213, 58 19 Matter of King, 8 Q. B. 129, 55 
 
 Pac. 47. E. C. L. 129, 10 Jur. 7. See also Rex 
 
 18 In re Davies, 93 Pa. St. 116, 39 v. Southerton, 6 East (Eng.) 127; 
 
 Am. Rep. 729, affirming 13 Phila. 65, Matter of Garbett, 18 C. B. 403, 86 E. 
 
 36 Leg. Int. 434. C. L. 403. 
 
CHAPTEK XXXI. 
 
 PROCEDURE, JUDGMENT AND PUNISHMENT. 
 
 Nature of Disbarment Procedure. 
 
 865. Generally. 
 
 866. Summary Procedure. 
 
 867. Whether Civil or Criminal Proceeding. 
 
 Who May Institute Proceedings, 
 
 868. Generally. 
 
 869. Bar Associations. 
 
 870. Right of Court to Act on Its Own Motion. 
 
 Mode of Proceeding. 
 
 871. Generally. 
 
 872. Necessity of Preferring Charges. 
 
 873. Manner of Presenting Charges. 
 
 874. Sufficient Charges. 
 
 875. Insufficient Charges. 
 
 876. Verification. 
 
 877. Rule to Show Cause and Notice Thereof. 
 
 878. Generally. 
 
 879. Where Criminal Misconduct is Charged. 
 
 880. Limitation and Laches. 
 
 881. Defensive Pleading. 
 
 Hearing. 
 
 882. Necessity of Hearing. 
 
 883. Mode of Hearing. 
 
 884. Right to Trial by Jury. 
 
 885. Qualification of Judge. 
 
 886. Generally. 
 
 887. Allegations and Proof. 
 
 Evidence. 
 
 1279 
 
1280 PEOCEDUEE, JUDGMENT AND PUNISHMENT. [§ 865 
 
 § 888. Presumptions. 
 
 889. Evidence of Accomplice. 
 
 890. Affidavits and Depositions. 
 
 891. Records and Proceedings in Other Actions and Courts. 
 
 892. Failure of Eespondent to Testify. 
 
 Findings, Verdict, Judgment and Punishment. 
 
 893. In General. 
 
 894. Punishment. 
 
 895. Costs and Expenses of Proceeding. 
 
 Nature of Disbarment Procedure. 
 
 § 865. Generally. — The action of a court in exercising its 
 power to disbar an attorney is judicial in character; but the in- 
 quiry made is in the nature of an investigation into the conduct 
 of one of its own officers, and not the trial of an action or suit, and 
 the order entered is but an exercise of the disciplinary jurisdic- 
 tion which it has over such officers.^ The purpose of exercising 
 this power is to protect the courts, and the administration of jus- 
 tice, from the rapacity or cupidity of those who have been licensed 
 as officers of the court,* and who are deemed unworthy to be al- 
 lowed so to continue.' And proceedings for disbarment are insti- 
 tuted merely to annul an extraordinary privilege originally con- 
 ferred upon those admitted to practice in reliance, among other 
 things, on the fact that they were possessed of a good moral char- 
 acter ; * they are not intended as a punishment,^ nor do they affect 
 the right of citizenship in any respect,^ the question for determi- 
 nation, in all such cases, being whether an attorney who is charged 
 with unprofessional conduct should be permitted to continue in 
 his office.' 
 
 lln re Durant, 80 Conn. 140, 10 B See supra, §§ 760-762. 
 
 Ann. Gas. 539, 67 Atl. 497. 6In re Thatcher, 83 Ohio St. 246, 
 
 2 Ex p. Wall, 107 U. S. 265, 2 S. Ann. Cas. 19]2A 810, 93 N. E. 895. 
 
 Ct. 569, 27 U. S. (L. ed.) 552, 27 7 Ex p. Wall, 107 U. S. 265, 2 S. 
 
 Alb. L. J. 406, 5 Ky. L. Kep. 2. See Ct. 569, 27 U. S. (L. ed.) 552, 27 
 
 also supra, § 762. Alb. L. J. 406, 5 Ky. L. Kep. 2; In 
 
 3 State V. Fourchy, 106 La. 743, 31 re Spencer, 137 App. Div. 330, 122 
 
 So. 325. See also supra, §§ 760, 7G1. N. Y. S. 190. 
 
 * See supra, § 34. 
 
'% 866] PEOCEDUEE, JUDGMENT AND PUNISHMENT. 
 
 1281 
 
 § 866. Summary Procedure. — It is well settled that the 
 ■court may summarily suspend or disbar an attorney at law for 
 unprofessional conduct,' because he is an officer thereof,' provid- 
 ing the bounds of due process of law are not transgressed.'" But 
 the right to practice law is a valuable one, of which an attorney can 
 he deprived only by the judgment of a court of competent juris- 
 diction, after notice and a full opportunity to be heard in his own 
 defense.*' Thus, while certain contempts of court constitute a 
 _ground for disbarment,'^ an attorney who is guilty thereof cannot 
 be summarily disbarred as a punishment in the contempt proceed- 
 ings." And in some jurisdictions disbarment will be ordered foi' 
 ■certain charges only after the matter has been submitted to the 
 tribunal which ordinarily has jurisdiction thereof.'* So, it has 
 been held that a court may not exercise summary jurisdiction in 
 -disbarment proceedings as to charges which affect an attorney's 
 ■character as a citizen only, and are entirely disconnected with his 
 professional relation to the court and his clients.'* 
 
 8 United States. — Ex p. Wall, 107 
 U. S. 265, 2 S. Ct. 569, 27 U. S. 
 (L. ed.) 552, 27 Alb. L. J. 406, 
 5-Ky. L. Rep. 2; Ex p. Burr, 2 
 Cranch (C. C.) 379, 4 Fed. Cas. No. 
 2,186. 
 
 Connecticut. — In re Durant, 80 
 -Conn. 140, 10 Ann. Cas. 539, 67 Atl. 
 497. 
 
 Florida. — State v. Maxwell, 19 Fla. 
 ^1. 
 
 Kentuokif. — ^Rice v. Com., 18 B. 
 TMon. 472. 
 
 Virginia. — In re Fisher, 6 Leigh 
 «19. 
 
 West Virginia. — State v. Stiles, 48 
 ■W. Va. 425, 37 S. E. 620. 
 
 Wisconsin. — Vernon County Bar 
 Ass'n I'. McKibbin, 153 Wis. 350, 141 
 N. W. 283. 
 
 9 See supra, § 760. 
 
 10 Shackelford v. McElhinney, 241 
 Mo. 592, 145 S. W. 1139; Vernon 
 
 Attys. at L. Vol. II.— 81. 
 
 County Bar Ass'n v. McKibbin, 153 
 Wis. 350, 141 N. W. 283. 
 
 11 Shackelford v. McElhinney, • 241 
 Mo. 592, 145 S. W. 1139. And see 
 infra, § 882. 
 
 12 See supra, §§ 791, 792. 
 
 13 People V. Turner, 1 Cal. 143, 52 
 Am. Dec. 295; State v. Root, 5 N. D. 
 487, 67 N. W. 596, 57 Am. St. Rep. 
 568; Ex p. Kearby, 35 Tex. Crim. 
 634, 34 S. W. 962; State v. Sachs, 2 
 Wash. 373, 26 Pac. 865, 26 Am. St. 
 Rep. 857. 
 
 11 See supra, §§ 860, 861, as to the 
 necessity of trial and conviction for 
 criminal misconduct. And , see also 
 the California cases cited supra, 
 § 809, as to the necessity of submit- 
 ting charges of misappropriation of a 
 client's funds to trial in an action 
 for the recovery thereof. 
 
 iSNeff V. Kohler Mfg. Co., 90 Mo. 
 App. 296. 
 
1282 
 
 PEOCEDUKE, JUDGMENT AND PUNISHMENT. [§ 867 
 
 § 867. Whether Civil or Criminal Proceeding. — The great 
 weight of authority sustains the view that a proceeding to dishar 
 an attorney is civil, not criminal, in its nature, and is governed by 
 the rules applicable to civil actions,^* the purpose thereof being to 
 purify the bar, and not to punish the respondent." But in some 
 jurisdictions it is held that proceedings of this character are of a 
 qitasi-cviminal nature, especially in so far as the proof of the 
 grounds of disbarment is concerned ; *' thus it was said in one 
 case : "We think the proceeding to disbar an attorney is a crimi- 
 nal proceeding, or at least it is a giwm-criminal proceeding. Such 
 a proceeding is for the public. It is always for misconduct on the 
 part of the attorney. It is not for money or other property, and 
 not to recover for any pecuniary loss sustained by the public. And 
 it always involves disgrace to defendant. It takes from him a 
 right of which he is already in possession. It takes away his busi- 
 ness and his means of gaining a livelihood. And this it does, not 
 for the purpose of giving the same to some other person, or to the 
 
 le United States.— Ex p. Wall, 307 
 U. S. 265, 2 S. Ct. 569, 27 U. S. 
 (L. ed.) 552, 27 Alb. L. J. 406, 5 Ky. 
 L. Rep. 2; Ex p. Burr, 2 Craneh 
 (C. C.) 379, 4 Fed. Cas. No. 2,186; 
 Philbrook v. Newman, 85 Fed. 139. 
 
 Arkansas. — Wernimont v. State, 
 :01 Ark. 230, Ann. Cas. 1913D 1156, 
 142 S. W. 394. 
 
 District of Columbia. — Bradley v. 
 Fisher, 7 D. C. 32, affirmed 13 Wall. 
 335, 20 U. S. (L. ed.) 646; Garfield 
 V. U. S., 32 App. Cas. 109. 
 
 Illinois. — Keithley v. Stevens, 238 
 111. 199, 87 N. E. 375, 128 Am. St. 
 Rep. 120, affirming 142 111. App. 406. 
 
 Indiana. — In re Darrow, 83 N. E. 
 1026. 
 
 Iowa. — State v. Clarke, 46 la. 3 55; 
 Slemmer v. Wright, 46 la. 705. 
 
 Kentucky. — Com. v. Richie, 114 Ky. 
 366, 70 S. W. 1054, 24 Ky. L. Rep. 
 1218. 
 
 Louisiana. — State v. Rightor, 49 
 La. Ann. 1015. 22 So. 195. 
 
 Montana. — In re Wellcome, 2.? 
 Mont. 259, 58 Pac. 711; In re 
 Thresher, 33 Mont. 441, 8 Ann. Cas. 
 845, 84 Pac. 876, 114 Am. St. Rep. 
 834. 
 
 North Carolina. — In re Ebbs, 150 
 N. C. 44, 17 Ann. Cas. 592, 63 S. E. 
 190, 39 L.R.A.(N.S.) 892. 
 
 North Dakota. — In re Crum, 7 N. 
 D. 336, 75 N. W. 257. 
 
 Oklahoma. — In re Biggers, 24 Okla. 
 842, 104 Pac. 1083, 25 L.R.A.(N.S.) 
 622. 
 
 Teioas. — Scott t'. State, 86 Tex. 321, 
 24 S. W. 789, overruling State v. 
 Tunstall, 51 Tex. 81. 
 
 Washington. — State v. Rossman, 53 
 Wash. 3, 17 Ann. Cas. 625, 101 Pac. 
 357, 21 L.R.A.(N.S.) 821. 
 
 17 See supra, § 762. 
 
 "Thomas v. State, 58 Ala. 365; 
 In re Baluss, 28 Mich. 507; In re 
 An Attorney, 1 Hun (N. Y.) 321. 
 
868] 
 
 PROCEDUBE, JUDGMENT AND PUNISHMENT. 
 
 1283 
 
 state, but simply to deprive the defendant of the same." ^® And 
 it would seem also that statutes providing for the disbarment of 
 attorneys are so far penal in character as to require a strict 
 construction.^" 
 
 Who May Institute Proceedings. 
 
 § 868. Generally. — In the absence of a statute providing 
 otherwise, it would seem that disbarment proceedings may be in- 
 stituted on the information of any person interested,^ and in some 
 instances it is expressly provided that such proceedings may be so 
 commenced.^ Thus, a client who has been injured may prosecute 
 proceedings for disbarment, notwithstanding a statute to the ef- 
 fect that the prosecuting attorney shall attend thereto.* So, dis- 
 barment proceedings may be instituted by members of the bar,* or 
 by the bar association,® or the attorney-general,* or the prosecuting 
 attorney,'' or the court.' And it has been held that the fact that a 
 statute provides for the institution of proceedings by the client, 
 
 19 Peyton's Appeal, 12 Kan. 398. 
 
 80 State V. Quarles, 158 Ala. 54, 
 48 So. 499; Klingensmith v. Kepler, 
 41 Ind. 341 ; State v. Byrkett, 4 Ohio 
 Dec. 89, 3 Ohio N. P. 28. 
 
 1 Fairfield County Bar v. Taylor, 
 60 Conn. 11, 22 Atl. 441, 13 L.R.A. 
 767; Byington v. Moore, 70 la. 206, 
 30 N. W. 485; In re Wellcome, 23 
 Mont. 140, 58 Pae. 45; Vernon County 
 Bar Ass'n v. McKibbin, 153 Wis. 350, 
 141 N. W. 283. 
 
 Compare People v. Allison, 68 111. 
 151, wherein it was said that an at- 
 torney will not be disbarred at the 
 relation of a stranger for failure to 
 pay over money to a, client, where 
 the client makes no complaint. 
 
 8 People V. Chamberlain, 242 111. 
 260, 89 N. E. 994. 
 
 3 Wilson V. Popham, 91 Ky. 327, 
 15 S. W. 859. 
 
 4 People V. Chamberlain, 242 111. 
 
 260, 89 N. E. 994; In re Radford, 159 
 Mich. 91, 123 N. W. 546, 16 Detroit 
 Leg. N. 757; State v. Harber, 129 
 Mo. 271, 31 S. W. 889 ; In re Bowman, 
 7 Mo. App. 569. 
 
 5 See the following section. 
 
 6 Wilson V. Popham, 91 Ky. 327, 15 
 S. W. 859; State v. Mullins, 129 Mo. 
 231, 31 S. W. 744; State v. Harber, 
 129 Mo. 271, 31 S. W. 889. See also 
 State V. Judge, 3 Kob. (La.) 436. 
 
 7 Wilson V. Popham, 91 Ky. 327, 
 15 S. W. 859; In re Shepard, 109 
 Mich. 631, 67 N. W. 971. 
 
 The New York Judiciary Law, 
 % 476, provides: "It shall be the duty 
 of any district attorney within a de- 
 partment, when so designated by the 
 appellate division of the supreme 
 court, to prosecute all cases for the 
 removal or suspension of attorneys 
 and counselors." 
 
 8 See infra, § 870. 
 
1284 PEOCEDUEE, JUDGMETiTT AND PUNISHMENT. [§ 869 
 
 does not prevent other parties interested from prosecuting such 
 proceedings. "Thus," said the court, on this point, "we would 
 have the anomalous state of affairs presented that a practicing at- 
 torney, who was guilty of conduct that brought censure and re- 
 proach upon the profession and the courts, could not be punished 
 because the particular individual whom he had wronged did not 
 wish to institute proceedings against him. This construction is 
 too narrow. It takes from the court the right to discipline its offi- 
 cers, and denies it the power to take such action as may be neces- 
 sary to punish an offender who is bringing the administration of 
 justice into disrepute." ' So, it has been held that one who pre- 
 fers charges against an attorney, is neither a necessary nor proper 
 party to disbarment proceedings brought thereon ; ^^ and also that 
 such proceedings involve only matters between the court, the at- 
 torney,*^ and the public.*^ It is clear, however, that an exclu- 
 sive method of procedure may be provided for by legislation, and 
 the local statutes should be consulted. But a requirement that 
 proceedings shall be instituted by certain persons, is waived by 
 appearing and answering in a proceeding commenced otherwise." 
 
 § 869. Bar Associations. — It is not only the right, but it is 
 the duty, of a bar association to bring to the court's attention the 
 fact that a member of the bar, whether he is a member of the as- 
 sociation or not, is believed to be guilty of unprofessional conduct 
 which merits censure, suspension, or disbarment.** In this re- 
 spect a bar association is deemed to be an interested party, not only 
 because the members thereof have the rights of other citizens, but 
 also because the association itself is composed of officers of the 
 court, and may be said to truly represent the court in bringing 
 before it a question of misconduct on the part of a member of the 
 
 9 Com. V. Koe, 129 Ky. 650, 112 " In re Evans, (Utah) 130 Pac, 217. 
 S. W. 683, 19 L.R.A.(N.S.) 413. And 12 State v. Martin, 45 Wash. 76, 
 see to the same effect People v. Cham- 87 Pac. 1054, explaining In re Ault's 
 berlin, 242 111. 260, 89 N. E. 994, Disbarment, 15 Wasli. 417, 46 Pac. 
 foUomng People v. Palmer, 61 III. 644. 
 
 '255. IS Jackson v. State, 21 Tex. 668. 
 
 10 Turner v. Com., 2 Mete. (Ky.) I4 1n re Danford, 157 Cal. 425, 108 
 619. Pac. 322. 
 
§ 869] PEOCEDUEE, JUDGMENT AND PUNISHMENT. 1285 
 
 bar.'* And in some jurisdictions it is provided by statute tbat 
 proceedings for disbarment must be instituted by a bar associa- 
 tion or its grievance committee.'^ Undoubtedly, disbarment pro- 
 ceedings may be instituted by an individual member of tbe bar 
 whether he has been appointed by a bar association, or at a bar 
 meeting, for this purpose or not; " but where proceedings were 
 brought by a member of the bar, acting in his individual capacity^ 
 the court said: "It has been customary in cases such as this to 
 call a meeting of the members of the bar to which the respondent 
 belongs, and in a proper case, after due and thorough deliberation 
 on the accusations brought against him, to select one or more 
 brethren of that bar to institute proceedings for disbarment. By 
 this usual method charges against a respondent are more thor- 
 oughly sifted ; the serious step of moving to disbar is only taken 
 when a majority of the respondent's brethren of the bar are satis- 
 fied that his name should be stricken from the roll of attorneys; 
 and the proceeding is happily relieved of all suspicion of personal 
 or private animosity and prejudice. We do not wish to be under- 
 stood to condemn the course pursued by [the relator] in this case, 
 nor to question the purity of his motives ; we simply wish to indi- 
 cate the more commendable method. We know of no previous de- 
 viations except when an attorney-general or a circuit solicitor 
 moved for the disbarment of an attorney who had been convicted 
 of a felony or an infamous offense, submitting the record as the 
 ground of the motion." *' It has been held, however, that a bar 
 association is not a recognized body, as such, in proceedings to dis- 
 bar an attorney, and cannot control the prosecution thereof; *' 
 and it is true that the court has some discretion as to whom it will 
 recognize in such proceedings. But, while an arbitrary refusal tc 
 
 IB state V. Martin, 45 Wash. 76, 767; In re Ebbs, 150 N. C. 44, 17 
 
 87 Pae. 1054, explaining In re Ault's Ann. Cas. 592, 63 S. E. 190, 19 L.E.A. 
 
 Disbarment, 15 Wash. 417, 46 Pac. (N.S.) 892; In re Duncan, 64 S. C. 
 
 644. 461, 42 S. E. 433. And see also the 
 
 16 In re Ebbs, 150 N. C. 44, 17 iSnn. preceding section. 
 
 Cas. S92, 63 S. E. 190, 19 L.R.A. 18 In re Duncan, 64 S. C. 461, 42: 
 
 (N.S.) 892. The local laws should S. E. 433. 
 
 be consulted in this respect. 19 In re McCarthy's Case, 42 Mich, 
 
 "Fairfield County Bar v. Taylor, 71, 51 N. W. 963. 
 60 Conn. 11, 22 Atl. 441, 13 L.R.A. 
 
1286 PEOCEDURE, JUDGMENT AND PUNISHMENT. [§ 870 
 
 listen to information from a proper source may be jurisdictional, 
 the source itself is not jurisdictional. The idea that the collec- 
 tive bar, through its representatives, is not entitled to eiBciently ap- 
 proach the court in disbarment proceedings, is erroneous. It would 
 be a most radical departure from the ideas, heretofore expressed, 
 "of the close relations between bench and bar, the mutual depend- 
 ence of each upon the other, and importance to both of maintain- 
 ing the highest practicable dignity, purity, capability and integ- 
 rity of the bar, to hold that, though the attorneys of a court pe- 
 tition it, acting substantially as a unit, as regards a matter vital 
 to the integrity of the profession, a deaf ear must, or may, be 
 turned thereto." ^" 
 
 § 870. Right of Court to Act on Its Own Motion. — 
 
 All courts of general jurisdiction which have authority to suspend 
 or disbar attorneys,^ may do so on their own motion in a proper 
 case, without formal complaint or petition,^ providing the attor- 
 ney has been duly notiiied,* and has had an opportunity to be 
 heard ; * and this is especially true where the cause for disbarment 
 occurs in the presence of the court.' In some jurisdictions this 
 rule is approved by legislation.^ It is customary, in those cases, 
 for the court to appoint one or more attorneys for the purpose of 
 drawing up and presenting for approval, a formal accusation 
 
 7 
 
 20 Vernon County Bar Ass'n v. Mc- Pennsylvania. — Ex p. Steinman, 95 
 
 Kibbin, 153 Wis. 350, 141 N. W. 283. Pa. St. 220, 40 Am. Rep. 637, re- 
 
 1 See supra, §§ 764-772. versing 8 W. N. C. 296. 
 
 2 United States. — Ex p. Wall, 107 West Virginia. — State r. McClaugh- 
 U. S. 265, 2 S. Ct. 569, 27 U. S. (L. erty, 33 W. Va. 250, 10 S. E. 407. 
 «d.) 552, 27 Alb. L. J. 406, o Ky. L. Wisconsin. — In re Orton, 54 Wis. 
 Rep. 2. 379, 11 N. W. 584; Vernon County 
 
 lovm. — Byington v. Moore, 70 la. Bar Ass'n v. McKibbin, 153 Wis. 
 
 •206, 30 N. W. 485; State v. Tracy, 350, 141 N. W. 283. See also supra, 
 
 115 la. 71, 87 N. W. 727; State v. § 866. 
 
 Kosher, 128 la. 82, 5 Ann. Gas. 984, s See infra, § 872. 
 
 203 N. W. 105. 4 See infra, § 882. 
 
 Missouri. — State v. Fort, 178 Mo. B Walker v. Com., 8 Bush (Ky.) 
 
 518, 77 S. W. 741. 86; In re Percy, 36 N. Y. 651. 
 
 mew York.— In re , 86 N. Y. estate v. Mosher, 128 la. 82, 5 
 
 563. See also In re Percy, 36 N. Y. Ann. Cas. 984, 103 N. W. 105. 
 
 651. estate v. Tracy, 115 la. 71, 87 N. 
 
§ 871] PEOCEDUE^, JUDGMENT AND PUNISHMENT. 1287 
 
 such accusation, however, may contain any matter which may seem 
 to be an appropriate ground for disbarment, irrespective of wheth- 
 er or not it was within the knowledge of the court at the time the 
 order was made.' But where a statute permits proceedings to be 
 instituted by direction of the court, or on motion of an individual, 
 and provides that in the former case the court shall appoint an at- 
 torney to draw up the accusation, and in the latter that such accu- 
 sation shall be drawn by the person making it, it was held that 
 where proceedings were commenced by an individual, the court 
 could not be required to appoint an attorney to prosecute the 
 charges.' 
 
 Mode of Proceeding. 
 
 § 871. Generally. — The same rules of law which govern other 
 civil rights are applicable in disbarment proceedings, excepting, 
 possibly, in a few jurisdictions, wherein such a proceeding is 
 deemed to be of a criminal, or quasi-cvimmal nature.** The man- 
 ner of proceeding, in the absence of an exclusive statutory mode, 
 is to be determined by the court,** but oppression and injustice 
 must be avoided ; *' for, while such proceedings are of a summary 
 nature, they cannot be used in an arbitrary manner.** ISTo par- 
 ticular formality is required,** and the proceedings may be en- 
 
 W. 727 ; State v. Mosher, 128 la. 82, 9 Byington v. Moore, 70 la. 206, 
 
 5 Ann. Cas. 984, :03 N. W. 105. 30 N. W. 485. 
 
 This procedure is required by stat- l" People v. Amos, 246 111. 299, 92 
 
 ute in Indiana. Ex p. Trippe, 66 N. E. 857, 138 Am. St. Kep. 239. 
 
 Ind. 531. "See supra, § 867. 
 
 A member of an adjoining bar in 12 Randall v. Brigham, 7 Wall. 523, 
 
 the same judicial district may be 19 XJ. S. (L. ed.) 285; Fairfield Coun- 
 
 appointed for this purpose. State ty Bar v. Taylor, 60 Conn. 11, 22 
 
 V. Fort, 178 Mo. 518, 77 S. W. 741. Atl. 441, 13 L.R.A. 767; In re Durant, 
 
 The fact that the court appoints 80 Conn. 140, 10 Ann. Cas. 539, 67 
 
 -three attorneys to take charge of dis- Atl. 497; Vernon County Bar Ass'n 
 
 barment proceedings, and to draw v. McKibbin, 153 Wis. 350, 141 N. W. 
 
 and file the proper accusation, in- 283. 
 
 stead of one, is immaterial. State u In re Durant, 80 Conn. 140, 10 
 
 r. Howard, 112 la. 256, 83 N. W. Ann. Cas. 539, 67 Atl. 497. 
 
 ■975. 1* See supra, § 866. 
 
 'State V. Mosher, 128 la. 82, 5 IB Wernimont v. State, 101 Ark. 
 
 Ann. Cas. 984, 103 N. W. 105; State 210, Ann. Cas. 1913D 1156, 142 S. 
 
 «•. Fort, 178 Mo. 518, 77 S. W. 741. W. 194; Vernon County Bar Ass'n r. 
 
1288 PROCEDUEE, JUDGMENT AND PUNISHMENT. [§ 872: 
 
 titled in the matter of the accused," or in the name of the state," 
 or in any other appropriate manner. But where an exclusive stat- 
 utory mode of procedure is provided, it should be followed as far 
 as it goes,*' and such further steps as are found to be necessary 
 may be determined by the court in accordance with the practice 
 in civil suits generally.*' In some instances statutory provisions, 
 of this character may be waived by failing to insist thereon; ^^ so, 
 a statutory provision as to who shall have a right to institute dis- 
 barment proceedings, has been held not to preclude the commence- 
 ment of such proceedings by another person.* 
 
 § 872. Necessity of Preferring Charges. — Before an attor- 
 ney at law may be removed from office, either under a statute, or 
 by the court in the exercise of its inherent powers, he is entitled 
 to have specific charges made against him, notice thereof, and a. 
 full opportunity to be heard. This is a rule of natural justice, 
 and it is as applicable where a proceeding is taken to reach the- 
 right of an attorney to practice his profession, as it is in proceed- 
 ings to reach his real or personal property.* The usual method is 
 to set forth specifically the misconduct with which an attorney is 
 charged,' in a verified petition,* and present the same to the court 
 for examination ; * and should the court deem the accusations suf- 
 
 McKibbin, 153 Wis. 350, 141 N. W. 1 See supra, § 868. 
 
 283. See also In re Thatcher, 190 « Bradley v. Fisher, 13 Wall. 335,. 
 
 Fed. 969. 20 U. S. (L. ed.) 646; Barnes v.. 
 
 "In re Crum, 7 N. D. 316, 75 N. Lyons, 187 Fed. 881, 110 C. C. A. 15; 
 
 W. 257. Ex p. Trippe, 66 Ind. 531, statutory- 
 
 I'Wernimont v. State, 101 Ark. requirement; In re Orton, 54 Wis.. 
 
 210, Ann. Cas. 1913D 1156, 142 S. 379, 11 N. W. 584. 
 W. 194; Turner v. Com., 2 Mete. 3 See the three following sections. 
 
 (Ky.) 619; In re Bowman, 7 Mo. * See infra, § 876. 
 
 App. 569. SSee infra, § 877. 
 
 1' In re Danford, 157 Cal. 425, 108 Where a complaint against an at-. 
 
 Pac. 322; People i'. Kavanagh, 220 torney was made to a judge, who had 
 
 111. 49, 77 N. E. 107, 110 Am. St. the papers placed in the files of the- 
 
 Rep. 223; Ex p. Trippe, 66 Ind. county clerk, it was held that the- 
 
 531 ; In re Burnette, 73 Kan. 609, court would take notice that the com- 
 
 85 Pac. 575. plaint was never in fact presented to 
 
 19 In re Burnette, 73 Kan. 609, 85 it or brought to its attention. In re- 
 
 Pac. 575. Aldrich, (Vt.) 86 Atl. 801. 
 
 M Jackson v. State, 21 Tex. 668. 
 
§ 873] PBOCEDUEE, JUDGMENT AND PUNISHMENT. 1289 
 
 ficient, a rule or order will be issued directing the attorney to 
 show cause why he should not be disbarred.* Such rule, together 
 with a copy of the charges preferred against him, should be served 
 upon the attorney,'' and he may answer or demur thereto, or, 
 should he see fit to do so, he may explain or confess.' But where 
 a record of conviction constitutes, in itself, a cause for which an 
 order of disbarment must be entered,* a certified copy thereof is 
 usually, by statute, made conclusive evidence in this respect, and 
 no further written accusation need be made," unless it is neces- 
 sary, under the statute, to show the nature of the crime, as, for 
 instance, that it is one involving moral turpitude. ^^ 
 
 § 873. Manner of Presenting Charges. — While no special 
 formality is required in presenting charges in disbarment proceed- 
 ings,** the facts should be stated with such certainty and particu- 
 larity that the court may judge of their sufficiency, and the party 
 charged be fully apprised thereof.*' The presentation of such 
 charges is not, of course, a trifling matter, nor are the charges to 
 be lightly made;** but they do not require the precision or techni- 
 
 6 See infra, § 877. Illinois. — People v. Matthews, 217 
 
 7 See infra, § 877. 111. 94, 75 N. E. 444. 
 
 8 See infra, § 881. Kansas. — In re Smith, 73 Kan. 
 
 9 See supra, § 858. 743, 85 Pac. 584. 
 
 10 In re Bloor, 21 Mont. 49, 52 Michigan. — Dickinson v. Dustin, 21 
 Pac. 779. Mich. 561. 
 
 11 U. S. V. Clark, 76 Fed. 560; State New Mexico. — In re Veeder, 10 N. 
 V. Bannon, (Ore.) 42 Pac. 869. M. 669, 65 Pac. 180. 
 
 1* Randall v. Brigham, 7 Wall 523, Under an Iowa statute, it seems, 
 
 19 U. S. (L. ed.) 285; U. S. v. Parks, the accusation need not recite the 
 
 93 Fed. 414; In re Smith, 73 Kan. facts upon which the prosecution 
 
 743, 85 Pac. 584; State v. Hays, 64 shall be founded. State v. Mosher, 
 
 W. Va. 45, 61 S. E. 355. 128 la. 82, 5 Ann. Cas. 984, 103 N. 
 
 iiVnited States. — Randall v. Brig- W. 105. 
 
 ham, 7 Wall 523, 19 U. S. (L. ed.) For a form of charges, ' see In re 
 
 285; In re Burr, 2 Cranch (C. C.) Thatcher, 80 Ohio St. 492, 89 N. E. 
 
 379, 1 Wheel. Grim. 503, 4 Fed. Cas. 39. 
 
 No. 2,186; U. S. v. Parks, 93 Fed. "In re Haskell, 150 App. Div. 
 
 414. 837, 135 N. Y. S 249. 
 
 i'Jorida.— State v. Finley, 30 Fla. 
 302, 11 So. 500; Zachary v. State, 
 53 Fla. 94, 43 So. 925. 
 
1290 PROCEDURE, JUDGMENT AND PUNISHMENT. [§ 874 
 
 cal accuracy which is necessary in criminal pleading. ^^ These 
 principles are illustrated in the two following sections. 
 
 § 874. Sufficient Charges. — On the application for an order 
 or rule, in the first instance, it is enough that the matters relied on 
 as grounds for disbarment are clearly stated in some proper form ; 
 they need not be accurate in every particular.^® Thus, where an 
 attorney was charged with failure to maintain the respect due the 
 court, defending an unjust cause, employing means of defense in- 
 consistent with truth, and misleading the court by artifice and 
 falsehood, the facts being set out in narrative form, without allega- 
 tions connecting them with either of the general charges of mis- 
 conduct set forth, the petition was held to be good on demurrer." 
 So, where it was charged that an attorney caused the publication 
 of an article, which was wilfully and maliciously false, for the 
 purpose of bringing the court into contempt and disgrace, the pe- 
 tition was deemed to be sufficient." And where a respondent, in 
 disbarment proceedings, was accused of having advised his client 
 to attempt to influence the action of the court in a pending suit 
 by newspaper publications, it was held that the petition was not 
 defective for failing to state the mode by which such advice was 
 communicated.'® So, an accusation that respondent urged a pros- 
 ecution for libel, and promised to secure satisfactory evidence of 
 the guilt of the defendant, and stated to his client that the statute 
 of limitations had not run, and at the hearing appeared for the 
 
 15 United states. — Philbrook v. 16 Boston Bar Assoc, v. Greenhood, 
 
 Newman, 85 Fed. 339. 168 Mass. 369, 46 N. E. 568. See 
 
 Florida. — State v. McEae, 49 Fla. also In re Eldridge, 82 N. Y. 161, 37 
 
 389, 6 Ann. Cas. 580, 38 So. 605. Am. Rep. 558. (See also mem. in 
 
 Illinois. — Moutray v. People, 162 2 Ky. L. Rep. 75 ) ; In re Dellenbaugh, 
 
 111. 194, 44 N. E. 496; People v. 9 Ohio Cir. Dec. 325, 17 Ohio Cir. 
 
 Moutray, 166 111. 630, 47 N. E. 79. Ct. 306. 
 
 Kansas.— In re Smith, 73 Kan. 17 In re Lowenthal, 78 Cal. 427, 21 
 
 743, 85 Pao. 584. Pac. 7. 
 
 Kentucky.— In re Woolley, 31 Bush 18 Cobb v. V. S., 172 Fed. 641, 96 
 
 95. C. C. A. 477. 
 
 Maine. — Sanborn v. Kimball, 64 19 Ex p. Cole, 1 McCrary 405, 6 
 
 Me. 140. Fed. Cas. No. 2,973. 
 
 Missouri. — See In re Bowman, 7 
 Mo. App. 569. 
 
§ 875] PEOCEDUEE, JUDGMENT AND PUNISHMENT, 1291 
 
 defendant and set up the statute of limitations, and procured a 
 writ of prohibition and the defendant's discharge thereon, has 
 been held to be good on demurrer.^" And a charge that the repu- 
 tation of an attorney for truth and veracity is so notoriously bad 
 that he is not to be believed under oath, it seems, is not too gen- 
 eral.^ It has also been held that a rule to show cause why an at- 
 torney's name should not be stricken from the record may be in- 
 corporated in, or based on, a decree in a suit in equity against 
 such attorney, wherein he was charged with fraud.^ 
 
 § 875. Insufficient Charges. — A petition for disbarment 
 should show that the respondent is a member of the bar, and all 
 other jurisdictional facts,' and should set forth with reasonable 
 certainty and particularity * the misconduct for which disbarment 
 is sought;' and the failure to do so may render the petition de- 
 fective. Thus, where an attorney was charged with having made 
 a false affidavit in connection with his application for admission 
 to the bar, the petition was held to be insufficient for failing to 
 state that the applicant knew that his statements were untrue.® 
 So, an accusation charging an attorney with having treated the 
 court disrespectfully, and having disobeyed an order thereof, was 
 held to be bad for failing to state the character of the disrespect, 
 or the order which had been disobeyed.' And where an attorney 
 was charged with having undertaken to represent conflicting in- 
 terests to the prejudice of his client, it was held that these charges 
 should be supported by a sufficient recitation of the facts.' Nor is 
 a charge sufficiently definite where it alleges that an attorney was 
 in the habit of encouraging the commencement and prosecution of 
 actions for the mere purpose of promoting his own ends and in- 
 terests, and, stirring up and exciting disputes and lawsuits 
 
 80 In re Stephens, 77 Cal. 357, 19 293 ; In re Mills, 1 Mich. 392 ; State 
 
 Pae. 646. v. Gebhardt, 87 Mo. App. 542; State 
 
 lln re Mills, 1 Mich. 392. v. Cadwell, (Mont.) 36 Pae. 85. ■ 
 8 In re Wool, 36 Mich. 299. 6 People v. Comstock, 176 111. 192, 
 
 3 Thomas v. State, 58 Ala. 365; 52 N. E. 67. 
 
 State V. Quarles, 158 Ala. 54, 48 So. 7 Perry v. State, 3 G. Greene (la.) 
 
 499. 550. 
 
 4 See the two preceding sections. s In re Collins, 147 Cal. 8, 81 Pae. 
 Bin re Cobb, 84 Cal. 550, 24 Pae. 220. 
 
1292 PEOCEDUEE, JUDGMENT AND PUNISHMENT. [§ 875 
 
 among his neighbors; the particular case or cases in which the 
 attorney had thus misconducted himself should have been set 
 forth.' So, a charge that an attorney went to another state to pre- 
 vent the extradition of one who had been arrested there, and at- 
 tempted to remove such person from the jurisdiction, was held to 
 be insufficient for failing to state that the fugitive had forfeited 
 his bail, or intended to do so, and that he purposed to remain be- 
 yond the jurisdiction and not render himself amenable to process, 
 and also for failing to state the arrest, the purpose thereof, or an 
 attempt to escape.^" And where a petition was predicated on the 
 fact that the respondent had been convicted of a crime, it was held 
 to be defective for failing to state that such crime involved moral 
 turpitude, where that element was required by statute.''' A charge 
 that an attorney took certain papers from the files, has also been 
 held to be too indefinite.** And where an attorney was charged 
 with having abstracted a subpoena from the clerk's office, it was 
 held that the petition was defective for failing to state the pen- 
 dency of the cause in which the subpoena had been issued, and also 
 for failing to state the time, place, manner, and intent of the ab- 
 straction.'^ A charge has also been held to be too indefinite and 
 uncertain where it stated that an attorney interlined and added to 
 a decree in a certain case after it was signed by the chancellor, but 
 failed to state what was interlined, or the date of the decree, or 
 the court in which the cause was pending, or any date at or about 
 which the alleged interlineation was perpetrated, or whether the 
 paper tampered with belonged to any of the courts of the state, or 
 that the act was done with any bad motive or malicious intent.'* 
 The court may allow amended or supplemental charges to be filed 
 in a proper case,'^ and improper amendments may be stricken 
 out." 
 
 9 Keilly v. Cavanaugh, 32 Ind. 13 State v. Finley, 30 Fla. 325, 11 
 214. So. 674, 18 L.R.A. 401. 
 
 10 In re Kaffenburgh, 188 N. Y. 49, M State v. Finley, 30 Fla. 325. 11 
 80 N. E. 570, affirming 115 App. Div. So. 674, 18 L.E.A. 401. 
 
 346, 101 N. Y. S. 507. 15 Wilson v. Popham, 91 Ky. 327, 
 
 11 U. S. V. Clark, 76 Fed. 560; 15 S. W. 859, 12 Ky. L. Eep. 904; In 
 
 State V. Bannon, (Ore.) 42 Pac. re Crura, 7 N. D. 316, 75 N. W. 257. 
 
 869. 16 State r. Howard, 112 la. 256, 
 
 "People V. Allison, 68 111. 151. 83 N. W. 975. 
 
§ 876] PEOCEDUEE, JUDGMENT AND PUNISHMENT. 1293 
 
 § 876. Verification. — The charges should be verified, and all 
 .statutory requirements to that effect complied with." And the 
 .sufficiency of the verification must be determined by an inspection 
 thereof ; the evidence of the affiant cannot be taken for the purpose 
 of showing that he had no personal knowledge as to the charges.'* 
 But where it is required by statute that "some person" shall verify 
 the accusation, charges preferred by a qioasi-puhlic body, such as a 
 IbUT association, or by a public officer whose duty it is to proceed 
 in matters of public interest, need not be verified by a member of 
 the bar association, or by such public officer; and it will be suffi- 
 -cient if the accusation presented has been verified by one who 
 swears to the truth thereof, and such affiant will be deemed to be 
 the accuser, although the charges are presented, and the prosecu- 
 tion conducted, on behalf of the bar association, or of the public.'* 
 Where, however, an accusation is verified by one who is not the 
 informer, the affidavit should show why it was so made.^" In 
 some instances verification on information and belief, wherein the 
 source of information is stated, has been held to be sufficient ; ' 
 but such verification is not a sufficient compliance with a statute 
 "which requires the charges to be verified as true.^ An entire ac- 
 cusation, however, will not be dismissed merely because some of 
 the charges therein are verified on information and belief, if those 
 made on positive knowledge are sufficient in themselves.* It has 
 also been held that requirements as to the verification of the 
 •charges in disbarment proceedings may be departed from for good 
 
 17 United States. — Ex p. Burr, 9 220 ; State Bar Commission v. Sulli- 
 Wheat. 529, 6 U. S. (L. ed.) 152. van, 35 Okla. 745, 131 Pac. 703. 
 
 Caij/omia.— In re Hudson, 102 Cal. "In re Collins, 147 Cal. 8, 81 
 
 467, 36 Pac. 812; In re Collins, 147 Pac. 220. 
 
 •Cal. 8, 81 Pae. 220. 2» In re Hotchkiss, 58 Cal. 39. 
 
 Florida. — State v. Kirke, 12 Fla. l In re Bumette, 70 Kan. 229. 78 
 
 •278, 95 Am. Dec. 314. Pac. 440; In re Veeder, 10 N. M. 660, 
 
 Missowri.— State v. Gebhardt, 87 65 Pac. 180. 
 
 Mo. App. 542. 2 In re Wellcome, 23 Mont. 213, 58 
 
 New Mexico. — In re Veeder, 10 N. Pac. 47; In re Weed, 26 Mont. 241, 
 
 M. 669, 65 Pac. 180. 67 Pae. 308. 
 
 New York.— In re Roe, 81 App. Div. 3 In re Wellcome, 23 Mont. 213, 5*i 
 
 656, 81 N. Y. S. 249. Pac. 47; In re Disbarment Proceed- 
 
 18 In re Collins, 147 Cal. 8, 81 Pac. ings, (N. D.) 140 N. W. 710. 
 
1294 
 
 PROCEDtTEE, JUDGMENT AND PUNISHMENT. [§ 877 
 
 cause,* as, for instance, when the charges are made by a bar as- 
 sociation, the attorney-general, or the prosecuting attorney, and 
 are so grave as to require investigation in the public interest, or 
 in vindication of the accused.^ The requirements as to verifica- 
 tion may also be waived by the respondent, and such waiver will 
 be presumed where charges are made and prosecuted at his re- 
 quest.* 
 
 § 877. Rule to Show Cause and Notice Thereof. — Having 
 been duly prepared and verified, charges for disbarment must be 
 presented to the court for examination ; ' whereupon, should the 
 court deem the charges to be suificient, it is customary to grant a 
 rule, order or citation to issue against the attorney directing him 
 to show cause why he should not be disbarred.' The respondent 
 
 * State V. Gebhardt, 87 Mo. App. 
 542. 
 
 And see also Ex p. Wall, 107 tJ. 
 S. 265, 2 S. Ct. 569, 27 U. S. (L. cd.) 
 552, wherein it appears that a pris- 
 oner was taken from a jail and hung 
 by a, mob during a recess of the court, 
 and that the judge saw the body 
 hanging there upon his return, and 
 was informed by the marshal of the 
 court, who was an eyewitness of the 
 transaction, but who, on account of 
 the excited state of the public mind, 
 declined to make any charge or affi- 
 davit, and it also appeared that the 
 respondent actively participated in 
 the crime, and was one of the leaders 
 of the mob, and other information 
 of like import was received from re- 
 liable sources, and that, upon the 
 hearing, abundant evidence of the 
 truth of the charge was adduced, and 
 the respondent, having every oppor- 
 tunity to explain his connection with 
 the affair, if innocent, made no at- 
 tempt to do so, it was held that the 
 proceedings were not rendered void 
 for want of an affidavit. 
 
 6 People V. Mead, 29 Colo. 344, 68 
 
 Pac. 241; State Bar Commission v, 
 Sullivan, 3S Okla. 745, 131 Pac. 703; 
 In re Evans, 94 S. C. 414, 78 S. E. 
 277. 
 
 6 Ex p. Burr, 9 Wheat. 529, fi U. 
 S. (L. ed.) 152. See also State v. 
 Mosher, 128 la. 82, 5 Ann. Gas. 984, 
 103 N. W. 105. 
 
 7 Ex p. Robinson, 19 Wall. 505, 22 
 U. S. (L. ed.) 205; State v. Mosher, 
 128 la. 82, 5 Ann. Cas. 984, 103 N. 
 W. 105; State v. Judge, 3 Eob. (La.) 
 416; Smith v. State, 1 Yerg. (Tenn.) 
 232. 
 
 8 United States. — Barnes v. Lyons, 
 187 Fed. 881, 110 C. C. A. 15. 
 
 Arkansas. — Beene v. State, 22 Ark. 
 149. 
 
 Florida.— St&te v. Kirlte, 12 Fla. 
 278, 95 Am. Dec. 314. 
 
 Kentucky. — Wilson r. Popham, 15 
 S. W. 859, 12 Ky. L. Hep. 904. 
 
 Missouri. — State v. Watkins, 3 Mo. 
 480. 
 
 Pennsylvamia. — In re Serfass, 2 Pa. 
 Co. Ct. 649, 19 W. N. C. 476. 
 
 West Virginia. — State v. Shumate, 
 48 W. Va. 359, 37 S. E. 618. 
 
 A complaint or information is the 
 
§ 877] PKOCEDTTEE, JUDGMENT AND PUNISHMENT. 
 
 1295 
 
 correct mode of proceeding against 
 an attorney who is charged with mal- 
 practice without the presence of the 
 court, in Kentucky. Walker v. Com., 
 8 Bush 88. 
 
 In New Yorlc it was held at an 
 early date that the court would not 
 entertain a motion to strike the 
 name of an attorney from the rolls, 
 but that the proper procedure was 
 for the applicant to present to the 
 court evidence of the attorney's mis- 
 conduct, upon which the court would 
 issue an order directing the attor- 
 ney to show cause why he should not 
 be disbarred. Anonymous, 22 Wend. 
 656; Matter of Percy, 36 N. Y. 651. 
 See also Matter of Eldridge, 82 N. 
 Y. 161, 37 Am. Rep. 558. The re- 
 quirements of this rule have been 
 enforced by the General Term (now 
 Appellate Division) of the Supreme 
 Court in the First Department (Mat- 
 ter of Brewster, 12 Hun 109), and 
 by the Appellate Division in the 
 Second Department (Matter of 
 Brooklyn Bar Assoc, 92 App. Div. 
 612 mem., 86 N. Y. S. 1130). The 
 rule is based upon the theory that 
 all proceedings for the disbarment or 
 suspension of attorneys should orig- 
 inate in the action of the court itself, 
 a course which requires that the per- 
 son desiring the investigation should 
 present to the court affidavits or other 
 authenticated papers from which the 
 court may decide whether further pro- 
 ceedings ought to be taken. Anony- 
 mous, 22 Wend. 656; Matter of 
 Brewster, 12 Hun 109. Compliance 
 with this rule might not be enforced, 
 however, if the matter were brought 
 to the attention of the court by order 
 of another court (Matter of Brew- 
 ster, supra), and, of course, wlien 
 the court is in possession of the facts 
 it may of its own motion issue an 
 
 order to show cause (Matter of Percy, 
 
 30 N. Y. 651; Matter of , 86 
 
 N. Y. 563) . The chief objection made 
 in the cases to proceeding by motion 
 of the accuser was that the court was 
 not made acquainted with the nature 
 of the evidence in support of the 
 charges when it was asked to re- 
 quire the attorney to answer. As this 
 may be done as readily by motion on 
 affidavits, etc., as by any other 
 method, and as the statute (Judiciary 
 Law, § 476, formerly Code Civ. Pro., 
 § 68) requires merely that the at- 
 torney be served with a copy of the 
 charges and be afforded an oppor- 
 tunity of being heard in his defense, 
 the rule seems unnecessarily techni- 
 cal. However, the rule is by no means 
 generally followed at the present 
 day. Thus in the First Department 
 the accepted practice is for the ac- 
 cuser (generally a bar association) 
 to prepare a verified petition stating 
 the charges, supported by affidavits 
 and documentary evidence, if any, 
 and to serve a copy thereof with a 
 notice of motion upon the attorney 
 accused. Upon the return day of 
 the motion the attorney submits to 
 the court his answer and any sup- 
 porting affidavits and documentary 
 evidence that he may desire. Upon 
 these papers the court determines 
 whether there are issues that ought 
 to be tried, and if that question is 
 decided in the affirmative, the case 
 is sent to a, referee to hear the evi- 
 dence and report the same, together 
 with his conclusions thereon, to the 
 court. Upon the coming in of the 
 referee's report the successful farty 
 moves for its confirmation. This 
 method of procedure has been followed 
 in cases too numerous to mention, 
 and has been tacitly sanctioned by 
 the Court of Appeals. In re Good- 
 
1296 
 
 PEOCEDUEE, JTJDGMEISrT AND PUNISHMENT. [§ 877 
 
 is entitled to notice, by service, of the rule so granted, and the 
 charges upon which the same is predicated.* Sometimes the man- 
 ner of service is regulated by statute,*" but, in the absence of such 
 regulation, the mode of service may be prescribed by the court, 
 or the method of serving motions and rules in ordinary civil cases 
 may be adopted. It is not necessary, unless required by statute, to 
 resort to the technical formalities required in the service of writs." 
 It has been held, however, that the respondent is not entitled to 
 notice of charges for misconduct committed in the presence of the 
 court, whether the same be spoken openly, or written or printed in 
 a paper presented to the court.*" So, where it is provided by stat- 
 ute that an attorney may be disbarred upon presentation to the 
 court of a certified copy of the record of his conviction of certain 
 crimes,*' it has also been held that a citation to the respondent is 
 unnecessary." The respondent may also waive requirements as to 
 
 man, 135 App. Div. 594, 120 N. Y. S. 
 801, 199 N. y. 143, 92 N. E. 211; 
 In re Chadsey, 141 App. Div. 458, 
 126 N. Y. S. 456, 201 N. Y. 572, 95 
 N. E. 1124. See also In re Kaffen- 
 burgh, 115 App. Div. 346, 101 N. Y. 
 S. 507, 188 N. Y. 49, 80 N. E. 570, 
 where the attorney's answer did not 
 deny the acts alleged in the petition, 
 and the case was submitted to the 
 court upon the pleadings. 
 
 9 United States. — Ex p. Robinson, 
 19 Wall. 505, 22 U. S. (L. ed.) 205; 
 In re Wall, 13 Fed. 814; Barnes v. 
 Lyons, 187 Fed. 881, 110 C. C. A. 15. 
 
 Conneotiout. — In re Durant, 80 
 Conn. 140, 10 Ann. Caa. 539, 67 Atl. 
 497. 
 
 IncUana. — Heffren v. Jayne, 39 Ind. 
 463, 13 Am. Rep. 281. 
 
 Kansas. — In re Peyton, 12 Kan. 
 398; In re Wilson, 79 Kan. 450, 100 
 Pac. 75. 
 
 Mississippi. — Ex p. Heyfron, 7 
 How. 127. 
 
 Neio York. — In re , 80 N. Y. 
 
 563. 
 
 West Virginia. — State v. Shumate, 
 48 W. Va. 359, 37 S. E. 618. 
 
 "In re Walkey, 26 Colo. 161, 56 
 Pac. 576. 
 
 The New York Judiciary Law, 
 § 476, provides: "Before an attorney 
 or counselor is suspended or removed 
 as prescribed in section eighty-eight 
 of this chapter, a copy of the charges 
 against him must be delivered to him 
 personally, or, in case it is estab- 
 lished to the satisfaction of the court, 
 that he cannot be served within the 
 state, the same may be served upon 
 him without the state by mail or 
 otherwise as the court may direct, 
 and he must be allowed an oppor- 
 tunity of being heard in his defense." 
 
 "In re Wilson, 79 Kan. 450, 100 
 Pac. 75. 
 
 12 In re Woolley, 11 Bush (Ky.) 
 95. 
 
 IS See supra, § 858. 
 
 14 In re Bloor, 21 Mont. 49, 52 Pac. 
 779. 
 
:§ 878] PEOCBDUEE, JUDGMENT AND PUNISHMENT. 1297 
 
 service by appearing and defending upon the merits without 
 objection.^' 
 
 Defenses. 
 
 § 878. Generally. — Defenses in disbarment proceedings may 
 consist of any matter which tends to show either that the charges 
 alleged are not true, or that, if true, they do not constitute grounds 
 for disbarment. It will be seen, therefore, that the preceding 
 chapter, which treats of grounds for disbarment, should be con- 
 sulted in this connection.^* It may be said generally that any de- 
 fense set up must be meritorious, for proceedings of this char- 
 acter are always directed to the end that unworthy men shall not 
 be permitted to continue as officers of the court," and proof to the 
 effect that the respondent has not shown himself to be unworthy is 
 of the greatest importance. It is not a good defense to show that 
 the informant or his witnesses procured the evidence presented by 
 them in a reprehensible manner, though, of course, that fact will 
 be taken into consideration with the other facts in the case.^° Nor 
 is it material that attorneys other than the respondent are also 
 guilty of misconduct similar to that charged against him.*' And 
 if the charges are true, it is immaterial that they were instituted 
 through motives of personal spite and revenge.*" An attorney is 
 not entitled to immunity from disbarment merely because he has 
 rectified the effect of his misconduct under legal compulsion.* 
 ISTor, as a rule, can an attorney successfully defend on the ground 
 of inexperience,* ignorance of the law,^ or previous good reputa- 
 
 15 State r>. Kirke, 12 Fla. 278, 95 i Matter of V., 10 App. Div. 491, 
 Am. Dec. 314. 42 N. Y. S. 268. 
 
 16 See supra, %% 773-864. And see supra, % 813. 
 
 WSee supra, §§ 760-762. « People v. Macauley, 230 111. 208, 
 
 I'ln re Wellcome, 23 Mont. 450, 82 N. E. 612, 120 Am. St. Rep. 287. 
 
 59 Pac. 445; In re Shoemaker, 2 Pa. Compare In re Knott, 71 Cal. 584, 
 
 Super. Ct. 27, 38 W. N. C. 414, af- 12 Pac. 780. See also supra, § 815. 
 
 fi/rmirug 5 Pa. Dist. Ct. 161, 38 W. 3 Ex p. Turner, 49 Ore. 227, 89 
 
 N. C. 54. Pac. 426; In re Schull, 25 S. D. 602, 
 
 19 In re Platz, (Utah) 132 Pac. 127 N. W. 541, modified 26 S. D. 
 
 390. 353, 128 N. W. 321. See also supra, 
 
 SO People V. Payson, 215 111. 476, § 776, 
 74 N. E. 383. 
 
 Attys. at L. Vol. H.— 82. 
 
1298 PEOCEDUEE, JUDGMENT AND PUNISHMENT. [§ 879 
 
 tion,* though any or all of these may be shown in connection with 
 other evidence tending to rebut the accusations of misconduct. 
 ISTor can an attorney defend on the ground that he has settled with 
 his client, or that the client does not wish to prosecute him, or ha& 
 not complained against him ; * and it is certainly no defense, where 
 an attorney is shown to have defrauded his client in the first in- 
 stance, to prove that the ultimate damage resulted to a third 
 party.* So, an attorney is estopped to object that a fraud, charged 
 as having been committed upon a client, was in fact a transaction 
 occurring prior to his admission, where, in such latter case, he 
 was guilty of a misdemeanor, under the local law, in falsely repre- 
 senting himself to be a licensed attorney.'' It has also been held 
 that while drunkenness is no defense in disbarment proceedings, 
 it will, nevertheless, be taken into consideration as a mitigating 
 circumstance, because the probability of reform is greater than 
 where the wrong has been committed with deliberation.' 
 
 § 879. Where Criminal Misconduct Is Charged. — Where 
 criminal misconduct is alleged as a ground of disbarment,' it is 
 no defense that the respondent may also be punished for a viola- 
 
 * People V. Betts, 26 Colo. 521, 58 for is shown. In re Jacobs, 137 App.. 
 
 Pac. 1091; In re Darrow, 175 Ind. Div. 937, 122 N. Y. S. 475. 
 
 44, 92 N. E. 369; In re Darrow, But a withdrawal of charges by a 
 
 (Ind.) 83 N. E. 1026; Ex p. Cowing, client is not a bar to further prose- 
 
 26 Ore. 572, 38 Pac. 1090. cution of the proceeding. See In re 
 
 6 People V. Chamberlain, 242 111. Martin, 6 Beav. (Eng.) 340; Honan 
 
 260, 89 N. E. 994; Com. v. Roe, 129 v. Montreal Bar, 30 Can. Sup. Ct. 
 
 Kj. 650, 112 S. W. 683, 19 L.E.A. 1 ; Matter of Roekmore, 130 App. Div.. 
 
 (N.S.) 413; In re Davies, 13 Phila. 586, 117 N. Y. S. 512. 
 
 (Pa.) 65, 36 Leg. Int. 434, 7 W. N. 6 In re Pascal, 146 App. Div. 836, 
 
 C. 506; Ex p. Orwing, 31 Leg. Int. 131 N. Y. S. 823. 
 
 (Pa.) 20; In re Ramsey, 24 S. D. 7 In re Elliott, 18 S. D. 264, 100 N, 
 
 266, 123 N. W. 726. W. 431. See also supra, § 842. 
 
 See also supra, §§ 795-803. And As to fraud in procuring admission 
 
 as to defenses where an attorney is to the bar, see supra, § 839; and as 
 
 charged with the unlawful retention to misconduct outside of professional 
 
 or misappropriation, of _ his client's duties, see supra, §§ 849-852. 
 
 fund, see sttpra, §§ 810-815. « In re Evans, 94 S. C. 414, 78 S. 
 
 The withdrawial of charges may be E. 227. 
 
 allowed where sufficient cause there- 9 See supra, §§ 853-864. 
 
§ 880] PEOCEDUEE, JUDGMENT AKD PUNISHMENT. 1299 
 
 tion of the penal laws.^" Nor can the respondent defend on the 
 ground that the prosecuting attorney promised not to prosecute 
 him further,*' or that he turned state's evidence/* or that he has 
 appealed from a conviction/' and in most instances even an ac- 
 quittal of the respondent on the trial of the criminal prosecution 
 will not constitute a defense in the disbarment proceedings.'* In 
 some states criminal misconduct, especially that which is entirely 
 disconnected with an attorney's professional capacity, constitutes 
 a ground for disbarment only when there has been a conviction 
 thereof; ^ and the fact that there has been no sxich conviction 
 would, of course, constitute a good defense in the disbarment pro- 
 ceedings. But conviction is not required as a general rule, 
 especially where the criminal misconduct, irrespective of its aspect 
 as a violation of the penal laws, is also unprofessional conduct.'* 
 And it has been held in one state that disbarment will not be or- 
 dered because of a conviction in another jurisdiction; " but the 
 general rule is otherwise.'* So, the court may take into consid- 
 eration the fact that the respondent has been pardoned." 
 
 § 880. Limitation and Laches. — The statute of limitations 
 does not constitute a bar to the prosecution of disbarment pro- 
 ceedings; nor will such proceedings be barred by mere laches.^** 
 
 10 See supra, § 853. See also Ex 80 United States. — U. S. v. Parks, 
 
 p. Tyler, 107 Cal. 78, 40 Pac. 33; 93 Fed. 414. 
 
 People V. Weeber, 26 Colo. 229, 57 California.— In re Lowenthal, 78 
 
 Pac. 1079. Cal. 427, 21 Pac. 7; Ex p. Tyler, 107 
 
 "People V. Hill, 182 111. 425, 55 Cal. 78, 40 Pac. 33. 
 
 ^- ^- ^*^- /IJinois.— People v. Hooper, 218 III. 
 
 12 Matter of Boland, 127 App. Div. o^o 75 jj j; ggg 
 
 746 111 N. Y. S. 932. Lnsas'-{n re Elliott, 73 Kan. 
 
 See supra, § 862. ^^ p^ ^^ ^^ ^^ ^ ^3 
 
 See supra, 864. ^^^ ^^ p^^ ^^^^ 
 
 15 See supra, § 860. ' 
 
 16 See supra, § 861. Lomsiana.—Sta.te v. Pourchy, 106 
 
 " In re Ebbs, 150 N. C. 44, 17 Ann. ^^- ''*^' ^^ ^''- ^^^• 
 
 Cas. 592, 63 S. E. 190, 19 L.R.A. Montana.— In re Weed, 26 Mont. 
 
 (N.S.) 892. 507, 68 Pac. 1115. 
 
 18 See supra, § 859. ^^^^ York. — In re Leonard, 193 N. 
 
 "See supra, § 863. See also Y. 655, 87 N. E. 1121; In re Leon- 
 
 N. Y. L. 1912, c. 253, amending § 88 ard, 127 App. Div. 493, 111 N. Y. S. 
 
 (2) of the N. Y. Judiciary Law. 905. 
 
1300 
 
 PEOCEDUKE, JUDGMENT AND PUNISHMENT. [§ 881 
 
 Thus, disbarment may be ordered for criminal misconduct, al- 
 though a prosecution of the crime is barred by the statute of limi- 
 tations,^ excepting, of course, where conviction is a prerequisite to 
 disbarment* But disbarment proceedings should not be instituted 
 for misconduct which occurred many years before, especially 
 where the respondent has lived an exemplary life thereafter.* And 
 the fact that such proceedings have been delayed wiU be taken into 
 consideration in mitigation of punishment,* and may result in a 
 dismissal.* Thus, proceedings have been dismissed where they 
 were commenced five,' seven,'' eight,* and thirteen * years after 
 the misconduct occurred. 
 
 § 881. Defensive Pleading. — Having been notified of the 
 disbarment proceedings, it is the duty of the respondent to plead 
 thereto at the time specified therein ; *" he may demur,*^ or an- 
 swer; and his answer may confess, explain, or deny the charges 
 preferred against him, If he confesses, the court may at once 
 
 North Dakota. — In re Crum, 7 N. 
 D. 316, 75 N. W. 257. 
 
 South Dakota. — In re Ramsey, 24 
 S. D. 266, 123 N. W. 726. 
 
 West Virginia. — State v. Haya, 64 
 . W. Va. 45, 61 S. E. 355. 
 
 In a, proceeding for disbarment up- 
 on charges of the publication of a 
 pamphlet disrespectful to the court, 
 the statute of limitations is not avail- 
 able as a defense, especially where 
 the pamphlet remains in circulation 
 until a time within what would be 
 the limitation period if the statute 
 of limitations be construed to apply. 
 State Bar Commission v. Sullivan, 35 
 Okla. 745, 131 Pac. 703. 
 
 1 See supra, § 861. 
 
 * See supra, § 860. See also 
 State V. Fourchy, 106 La. 743, 31 
 So. 325. 
 
 8 In re Elliott, 73 Kan. 151, 84 
 Pac. 750; In re Sherin, 27 S. D. 232j 
 Ann. Cas. 1913D 446, 130 N. W. 761^ 
 40 L.R.A.(N.S.) 801. 
 
 4 In re Lowenthal, 78 Cal. 427, 21 
 Pac. 7; In re Aldrich, (Vt.) 86 Atl. 
 801. 
 
 6 In re Hutson, 127 App. Div. 492, 
 111 N. Y. S. 731. 
 
 « State V. Clopton, 15 Mo. App. 589. 
 
 7 People V. Allison, 68 111. 151. 
 
 • People V. Tanquary, 48 Colo. 122, 
 109 Pac. 260. 
 
 9 People V. Ooleman, 210 111. 79, 
 71 N. E. 693; In re Elliott, 73 Kan. 
 151, 84 Pac. 750. 
 
 10 A defendant in a disbarment pro- 
 ceeding is not entitled to the time al- 
 lowed to answer an ordinary sum- 
 mons, but may be cited to appear 
 within any time that gives him a 
 reasonable opportunity to be heard. 
 In re Brown, 2 Okla. 590, 39 Pac. 
 469. 
 
 11 Eeilly v. Cavanaugh, 32 Ind. 
 214; State v. Martin, 46 Wash. 76, 
 87 Pac. 1054. 
 
§ 883] PEOCEDUEE, JUDGMENT AND PUNISHMENT. 1301 
 
 render judgment; and if he explains, it is for the court to say 
 whether such explanation is sufficient ; ^* if he denies the charges, 
 a question is also raised for the determination of the court after 
 the evidence has heen taken.'* An answer, whether by way of ex- 
 planation or denial, should make a clear, full, and accurate state- 
 ment of the facts.'* But the failure to answer will not warrant 
 the entry of an order of disbarment,'* excepting where a record of 
 conviction has been presented to the court," and such record, in it- 
 self, warrants disbarment" An improper answer may be stricken 
 out; " but if it is merely evasive, the respondent will be given an 
 opportunity to file a more specific answer." The filing of an an- 
 swer to the merits waives an objection to the form of the proceed- 
 ing,*' and to the fact that the complaint has not been examined by 
 the court.' And where a respondent who was charged with hav- 
 ing made false charges in disbarment proceedings against another 
 attorney, answered that such alleged false charges were not filed 
 solely because of ill will, it was held that he thereby admitted, by 
 implication, that such charges were malicious in part.* A repli- 
 cation need not be filed to the answer.' 
 
 Hearing. 
 
 § 882. Necessity of Hearing. — An attorney can be deprived 
 of the right to practice his profession only upon a judicial hearing 
 on charges legally presented, and in which he is given a full and 
 
 win re Eldridge, 82 N. Y. 161, 37 18 People v. Adams, 26 Colo. 412, 
 
 Am. Kep. 558 (see also mem. in 2 58 Pac. 603. 
 
 Ky. L. Eep. 75). Admission conelu- 1* See supra, § 858. 
 
 sive, In re Newell, 157 App. Div. 907, 18 People v. Payson, 210 111. 82, 
 
 142 N. Y. S. 185. 71 N. E. 692. See also In re Barn- 
 
 18 State V. Mosher, 128 la. 82, 5 ard, 145 App. Div. 910, 129 N. Y. S. 
 
 Ann. Cas. 984, 103 N. W. 105. 939. 
 
 "People V. Webster, 28 Colo. 223, 19 People v. Webster, 28 Colo. 223, 
 
 64 Pac. 207. 64 Pac. 207. 
 
 The requirements as to setting 20 Jackson v. State, 21 Tex. 668. 
 
 forth the facts in an answer are prac- l State v. Mosher, 128 la. 82, 5 
 
 tically the same as those required in Ann. Cas. 984, 103 N. W. 105. 
 
 the petition as stated supra, § 873. 2 In re Cooksey, 79 Kan. 550, 100 
 
 16 Ex p. Robinson, 19 Wall. 505, 22 Pac. 62. 
 
 U. S. (L. ed.) 205; In re Walkey, » State v. Maxwell, 19 Fla. 31. 
 26 Colo. 161, 56 Pac. 576. 
 
1302 
 
 PEOCEDUEJE, JtTDGMENT AND PUNISHMENT. [§ 882 
 
 fair opportunity to be heard in his own defense.* Nor can disbar- 
 ment be ordered in contempt proceedings,* or in any other arbi- 
 trary manner.* Nor is it proper for the court to deprive an attor- 
 ney of the right to practice his profession pending the investiga- 
 tion and hearing in the disbarment proceedings.'' There may, of 
 course, be cases of such gross and outrageous conduct in open court 
 on the part of an attorney, as to justify very summary proceed- 
 ings for his suspension or removal from office; but even then he 
 should be heard before he is condemned." However, an attorney 
 against whom charges have been made with a view to his disbar- 
 ment is not entitled to be present at the sittings of a committee 
 appointed by the court or a bar association, at which such charges 
 are being investigated preliminary to a formal presentation there- 
 of.' When facts warranting disbarment or suspension are ad- 
 
 1 United States. — Ex p. Robinson, 
 19 Wall. 505, 22 U. S. (L. ed.) 205. 
 
 Alahama. — Withers v. State, 36 
 Ala. 252. 
 
 Arlcansas. — Beene v. State, 22 Ark. 
 149. 
 
 California. — People v. Turner, 1 
 Cal. 143, 52 Am. Dec. 295; Fletcher 
 V. Daingerfield, 20 Cal. 427. 
 
 Connecticut. — In re Durant, 80 
 Conn. 140, 10 Ann. Cas. 539, 67 Atl. 
 497. 
 
 Indiana. — Ex p. Smith, 28 Ind. 47; 
 Heffren v. Jayne, 39 Ind. 463, 13 Am. 
 Rep. 281. 
 
 Iowa. — State v. Start, 7 la. 499. 
 
 Michigan. — Warren v. Connolly, 
 165 Mich. 274, 130 N. W. 637, 33 
 L.R.A.(N.S.) 314, 18 Detroit Leg. 
 N. 138. 
 
 Missouri. — Shackelford v. McEl- 
 hinney, 241 Mo. 592, 145 S. W. 1139. 
 
 New York. — In re Eldridge, 82 N. 
 y. 161, 37 Am. Rep. 558 (see also 
 mem. in 2 Ky. L. Rep. 75). 
 
 North Dakota. — State v. Root, 5 N. 
 D. 487, 67 N. W. 596, 57 Am. St. Rep. 
 568. 
 
 Pennsylvania. — Ex p. Steinman, 95 
 Pa. St. 220, 40 Am. Rep. 637, revers- 
 ing 8 W. N. C. 296. 
 
 Virginia. — In re Fisher, 6 Leigh 
 619. 
 
 West Virginia. — State v. Stiles, 4S 
 W. Va. 425, 37 S. E. 620. 
 
 A judge in chambers has no power 
 to suspend or disbar an attorney from 
 practicing in the courts. State v. 
 Nathans, 49 S. C. 199, 27 S. E. 52. 
 
 B People V. Turner, 1 Cal. 143, 52 
 Am. Dec. 295; State v. Root, 5 N. D. 
 487, 67 N. W. 590, 57 Am. St. Rep. 
 568; Ex p. Kearby, 35 Tex. Crim. 
 634, 34 S. W. 962; State v. Sachs, 2 
 Wash. 373, 26 Pac. 865, 26 Am. St. 
 Rep. 857. 
 
 «See supra, § 866. 
 
 » State V. Goode, 4 Idaho 730, 44 
 Pac. 640. 
 
 8 Ex p. Robinson, 19 Wall. 50,5, 22 
 U. S. (L. ed.) 205; Ex p. Wall, 107 
 U. S. 265, 2 S. Ct. 569, 27 U. S. (L. 
 ed.) 552. 
 
 9 State I). Fourchy, 106 La. 743, 31 
 So. 325. 
 
§ 883] PEOCEDUEE, JUDGMENT AND PUNISHMENT, 1303 
 
 mitted by the attorney in his pleadings, there is no necessity for 
 taking testimony, and the court will render judgment without di- 
 recting a hearing.^" 
 
 § 883. Mode of Hearing. — Disbarment proceedings are usu- 
 ally d'jemed to be of a civil nature ; *^ and, therefore, a hearing 
 therein is governed by the rules which apply to the trial of other 
 civil proceedings.^'' In many jurisdictions the mode of hearing is 
 fixed by statute ; but, in the absence of such regulation, the court 
 may determine the manner in which the hearing shall be conduct- 
 ed.^' Whether regulated by statute or not, it is customary to 
 order a reference of the issues raised for the purpose of taking tes- 
 timony, and reporting thereon ; '* but the evidence must be exam- 
 ined by the court before the order of disbarment is entered.*' And 
 the conclusions of a committee in a disbarment proceeding will or- 
 dinarily be accepted by the court. So, where the report of such a 
 committee negatived the impropriety of an agreement for contin- 
 gent fees in the particular circumstances, its conclusion would not 
 
 10 Matter of Pritchett, 122 App. 137 App. Div. 909, 121 N. Y. S. 
 Div. 8, 106 N. Y. S. 847; Matter of 948; In re Barnard, 145 App. Div. 
 Schapiro, 144 App. Div. 1, 128 N. Y. 910, 129 N. Y. S. 939. 
 
 S. 852. In Vermont the charges are re- 
 
 This will be done, of course, when ferred to commissioners chosen from 
 
 the attorney asks that the case be members of the bar, whose conclu- 
 
 decided on the admitted facts. In sions, when reported to the court, are 
 
 re Kaflfenburgh, 115 App. Div. 346, treated as the verdict of a jury. In 
 
 101 N. Y. S. 507, 188 N. Y. 49, 80 re Jones, 70 Vt. 71, 39 Atl. 1087. 
 
 N. E. 570; In re Shay, 133 App. Div. IS In re Chandler, 105 Mich. 235, 
 
 547, 118 N. Y. S. 146, affirmed 196 63 N. W. 69. 
 
 N. Y. 530, 89 N. E. 1112. The Alaska Pol. Code, § 750, pro- 
 
 11 See sttpra, § 867. viding for reference to three .iisin- 
 
 12 People V. Amos, 246 111. 299, 92 terested attorneys of proceedings for 
 N. E. 857, 138 Am. St. Rep. 239. disbarment and suspension of an at- 
 
 18 Ex p. Wall, 107 U. S. 265, 2 torney, for misconduct, is confined to 
 
 S. Ct. 569, 27 U. S. (L. ed.) 552; cases where the accusation is made 
 
 Fairfield County Bar v. Taylor. 60 on the knowledge of the court or 
 
 Conn. 11, 22 Atl. 441, 13 L.R.A. 767. judge thereof, and is inapplicable to 
 
 14 People v. Mead, 29 Colo. 344, 68 proceedings instituted on the infor- 
 
 Pac. 241 ; In re Eldridge, 82 N, Y. mation of a third person, as author- 
 
 161, 37 Am. Eep. 558 (see also mem. ized by section 744. Cobb v. U. S., 
 
 in 2 Ky. L. Rep. 75); In re Stern, 172 Fed. 641, 96 C. C. A. 477. 
 
1304 PEOOEDUEE, JUDGMENT AND PUNISHMENT. [§ 883 
 
 be disturbed.^® In some jurisdictions, however, it is held that the 
 court cannot delegate to another the power to examine witnesses in 
 disbarment proceedings, but that it must, itself, conduct such ex- 
 amination, so that the judge "may observe the manner of the wit- 
 nesses, and may give to their evidence credence or disbelief, as a 
 jury does, according as their manner of testifying may indicate 
 prejudice, malice or other sinister motive to subserve." " And 
 in another case it was said that, in proceedings for disbarment, it 
 is not safe to rely upon testimony taken before a referee or master,, 
 or any other tribunal ; but the court should hear the witnesses in 
 the presence of the respondent. In such proceedings the court de- 
 cides the issues of fact as well as of law, and to do so satisfac- 
 torily and in justice and fairness to the attorney accused, the same 
 opportunity should be given which is given to a jury to determine 
 the credibility of witnesses by observing their demeanor as well 
 as by hearing what they say.^' So, it has been held that the court 
 should separate the witnesses, on request, in disbarment proceed- 
 ings." But where an attorney, who was charged with misconduct 
 in practicing before the patent office, had a full hearing before the 
 commissioner of patents, it is not an essential part of such hearing 
 that he should be permitted to present arguments before the secre- 
 tary of the interior, to whom the commissioner of patents had re- 
 ported, in person.*" It has been held that it is not error to refuse 
 a separate trial where two or more attorneys have been joined as 
 respondents in disbarment proceedings ; * and in such case there 
 may be a conviction or acquittal as to one only.* A change of 
 venue may be allowed in disbarment proceedings for the same rea- 
 sons, and upon compliance with the same rules, as prevail in ordi- 
 nary civil actions.* 
 
 1« In re Aldrioh, (Vt.) 86 Atl. 801. 80 u. S. v. Blias, 12 App. Cas. 
 
 "State V. Finley, 30 Fla. 325, 11 (D. C.) 485. 
 
 So. 674, 18 L.R.A. 401. 1 In re Darrow, 175 Ind. 44, 92 
 
 In Kansas proceedings for disbar- N. E. 369. 
 
 ment are required by statute to be 2 In re Wilson, 79 Kan. 450, 100 
 
 heard by the court. In re Smith, 73 Pac. 75. 
 
 Kan. 743, 85 Pac. 584. 8 Slemmer v. Wright, 46 la. 705; 
 
 18 In re Duncan, 64 S. C. 461, 42 In re Peyton, 12 Kan. 398. 
 S. E. 433. 
 
 "Walker ». Com., 8 Bush (Ky.) 
 86. 
 
§§ 884, 885] PEOOEDUEE, JUDGMENT AND PUNISHMENT. 1305 
 
 § 884. Right to Trial by Jury. — It is well settled that in the 
 absence of clear statutory provision, the respondent in disbarment 
 proceedings is not entitled, as a matter of right, to a jury trial;* 
 but the court may, should it see fit to do so, order a jury trial. 
 And it seems that where an attorney is charged with misconduct 
 outside the scope of his professional relations with the court and 
 his clients,' a trial by jury should be allowed. Thus, where dis- 
 barment proceedings were predicated on the publication of a libel 
 concerning a public oflBcial, it was held that the respondent was en- 
 titled, before he might be disbarred, to the judgment of his peers 
 according to the law of the land ; but in that case it appears that 
 the state constitution provided that "no conviction shall be had 
 in any prosecution for the publication of papers relating to the 
 official conduct of officers or men in public capacity, or to any 
 other matter proper for public investigation or information, where 
 the fact that such publication was not maliciously or negligently 
 made, shall be established to the satisfaction of the jury." ® 
 
 § 885. Qualification of Judge. — The rule applicable to ordi- 
 nary civil suits applies here also. And it has been held that a pro- 
 ceeding to disbar an attorney, instituted by a bar association or- 
 ganized to insure conformity to a high standard of professional 
 
 i United States.— Ex p. Wall, 107 New Torfc.— Burr's Case, 1 Wheel. 
 
 U. S. 265, 2 S. Ct. 569, 27 U. S. Crim. 503. 
 
 (L. ed.) 552. Oklahoma. — Dean v. Stone, 2 Okla. 
 
 Oonneoticut. — In re Durant, 80 13, 35 Pac. 578; State Bar Commla- 
 
 Conn. 140, 10 Ann. Cas. 539, 67 Atl. sion v. Sullivan, 35 Okla. 745, 131 
 
 497. Pac. 703. 
 
 Florida. — State v. McRae, 49 Fla. Permsylvama. — ^In re Gates, 17 W. 
 
 389, 6 Ann. Caa. 580, 38 So. 605. N. C. 142, 2 Atl. 214. 
 
 Indiana. — Ex p. Robinson, 3 Ind. Tennessee. — Smith v. State, 1 Yerg. 
 
 52. But see Keilly v. Cavanaugh, 32 228. 
 
 Ind. 214. Washington. — State v. Rossman, 53 
 
 Kansas. — In re Norris, 60 Kan. Wash. 1, 17 Ann. Cas. 625, 101 Pac. 
 
 649, 57 Pac. 528. 357, 21 L.R.A.(N.S.) 821. 
 
 Louisiana. — State v. Fourchy, 106 s See swpra, §§ 849-852. 
 
 La. 743, 31 So. 325. Contra, Cheva- 6 Ex p. Steinman, 95 Pa. St. 220, 
 
 Ion V. Schmidt, 11 Rob. 91; Turner 40 Am. Rep. 637, reversing 8 W. N. 
 
 V. Walsh, 12 Rob. 383. 0. 296. 
 
 Michigan. — In re Shepard, 109 
 Mich. 631, 67 N. W. 971. 
 
1306 
 
 PEOCEDUEE, JUDGMENT AND PUNISHMENT. [§ 886 
 
 duty, is a proceeding within the exercise of the jurisdiction of 
 the court over an officer for the maintenance of the purity of the 
 court by removing an unfit person, and that such association is not 
 a party thereto, though the proceeding is entitled in its name, and 
 that judges who are honorary members of the association are not 
 disqualified from hearing and determining charges so preferred.' 
 
 Evidence. 
 
 § 886. Generally. — The ordinary rules of evidence are appli- 
 cable in proceedings for disbarment, and an order of disbarment 
 or suspension will be entered only upon satisfactory proof; ' and 
 
 ' Ex p. State Bar Assoc. 92 Ala. 
 113, 8 So. 768, 12 L.E.A. 134; Bar 
 Association v. Casey, 211 Mass. 187, 
 Ann. Cas. 1913A 1226, 97 N. E. 751, 
 39 L.R.A.(N.S.) 116; In re Bowman, 
 67 Mo. 146. 
 
 8 The competency of witnesses, and 
 the admissibility and weight of evi- 
 dence, are discussed in the following 
 cases: 
 
 United States. — In re Boone, 83 
 Fed. 944. 
 
 California,. — In re Luce, 83 Cal. 
 303, 23 Pac. 350; In re Barnes, 16 
 Pac. 896. 
 
 Colorado. — People v. Benson, 24 
 Colo. 358, 51 Pac. 481; People v. 
 Keegan, 30 Colo. 71, 69 Pac. 524; 
 People V. Kelsey, 32 Colo. 1, 75 Pac. 
 390; People v. Essington, 32 Colo. 
 168, 75 Pac. 394; People v. Robinson, 
 32 Colo. 241, 75 Pac. 922; People 
 V. Johnson, 40 Colo. 460, 90 Pac. 1038. 
 
 District of Columbia. — In re Ad- 
 riaans, 28 App. Cas. 515. 
 
 Florida. — State v. Young, 30 Fla. 
 85, 11 So. 514; Zachary v. State, 53 
 Fla. 94, 43 So. 925. 
 
 Illinois. — People v. Moutray, 166 
 111. 630, 47 N. E. 79; People v. 
 Shirley, 214 111. 142, 73 N. E. 303; 
 
 People V. Gilmore, 214 111. 569, 73 
 N. E. 737, 69 L.R.A. 701; People v. 
 Frisch, 218 111. 275, 75 N. E. 904; 
 People V. Brown, 218 111. 301, 75 N. 
 E. 907; People v. Sullivan, 218 111. 
 419, 75 N. E. 1005 ; People v. Eeaugh, 
 224 111. 541, 79 N. E. 936; People v. 
 Stirlen, 224 111. 636, 79 N. E. 069; 
 People V. Keithley, 225 111. 30, 80 
 N. E. 50; People v. Thornton, 228 
 111. 42, 81 N. E. 793; People v. Kne- 
 fel, 233 111. 133, 84 N. E. 172; People 
 V. Barrios, 237 111. 527, 86 N. E. 
 1075; People v. Maloney, 240 111. 96, 
 88 N. E. 287; People v. Chamberlain, 
 242 111. 260, 89 N. B. 994; People 
 V. Allen, 244 111. 393, 91 N. E. 483; 
 People V. Amos, 246 111. 299, 92 N. 
 E. 857, 138 Am. St. Rep. 239 ; People 
 V. Adams, 249 111. 524, 94 N. E. 950; 
 People V. Olson, 258 111. 283, 101 N. 
 E. 521. 
 
 Indiana. — Ex p. Walls, 64 Ind. 461. 
 
 Iowa. — State v. Howard, 112 la. 
 256, 83 N. W. 975; State v. Mosher, 
 128 la. 82, 5 Ann. Cas. 984, 103 N. 
 W. 105; State v. Johnson, 149 la. 
 462, 128 N. W. 837. 
 
 Kansas. — In re Burnette, 70 ICan. 
 229, 78 Pac. 440; In re Smith, 73 
 Kan. 743, 85 Pac. 584; In re Wil- 
 
§ 886] PEOCEDUUE, JUDGMENT AND PUNISHMENT. 
 
 1307 
 
 this has been held to be true even where the respondent makes de- 
 fault.* The court should never disbar a lawyer on testimony of a 
 
 son, 79 Kan. 674, 17 Ann. Cas. 690, 
 100 Pac. 635, 21 L.R.A.(N.S.) 517; 
 In re Wilcox, 133 Pac. 547. 
 
 Kentucky. — Tudor v. Com., 84 S. 
 W. 522, 27 Ky. L. Eep. 87; Under- 
 wood V. Com., 105 S. W. 151, 32 Ky. 
 L. Rep. 32. 
 
 Louisiana. — State v. Fourchy, 106 
 La. 743, 31 So. 325. 
 
 Massachv^etts. — Bar Assoc, of Bos- 
 ton V. Casey, 196 Mass. 100, 81 N. 
 E. 892; Bar Assoc, of Boston v. Hale, 
 197 Mass. 423, 83 N. E. 885. 
 
 Mirmesota. — Southworth v. Bearnes, 
 88 Minn. 31, 92 N. W. 466; State 
 Board of Examiners v. Byrnes, 93 
 Minn. 131, 100 N. W. 645; State 
 Board of Examiners v. Dodge, 93 
 Minn. 160, 100 N. W. 684; State 
 Board of Examiners v. Byrnes, 100 
 Minn. 76, 110 N. W. 341. 
 
 Missouri. — In re Disbarment of 
 Lyons, 162 Mo. App. 688, 145 S. W. 
 844. 
 
 Montana. — In re Baum, 10 Mont. 
 225, 25 Pac. 99; State v. Cadwell, 16 
 Mont. 119, 40 Pac. 176; In re Carle- 
 ton, 33 Mont. 431, 84 Pac. 788, 114 
 Am. St. Eep. 826. 
 
 Nebraska. — State v. Fisher, 82 Neb. 
 361, 117 N. W. 882, affirmed on re- 
 hearing 82 Neb. 367, 119 N. W. 249. 
 
 New Mexico. — In re Catron, 8 N. 
 M. 253, 43 Pac. 724. 
 
 New York. — In re , 86 N. 
 
 Y. 563; In re Randel, 158 N. Y. 216, 
 52 N. E. 1106; In re Dunn, 27 App. 
 Div. 371, 50 N. Y. S. 163; Metropoli- 
 tan St. R. Co. V. Oppenheim, 58 App. 
 Div. 510, 69 N. Y. S. 524; In re 
 Clark, 108 App. Div. 150, 95 N. Y. 
 S. 388, affirmed 184 N. Y. 222, 77 N. 
 E. 1; In re Nekarda, 114 App. Div. 
 
 370, 100 N. Y. S. 42, affirmed 188 N. 
 Y. 590, 81 N. E. 1170; In re Hart, 
 131 App. Div. 661, 116 N. Y. S. 193; 
 In re Hardenbrook, 135 App. Div. 
 634, 121 N. Y. S. 250, affirmed 199 N. 
 Y. 539, 92 N. E. 1086; In re Rosen- 
 thal, 137 App. Div. 772, 122 N. Y. 
 S. 471; In re Harding, 139 App. Div. 
 482, 125 N. Y. S. 264; In re Lowy, 
 140 App. Div. 537, 125 N. Y. S. 777 ; 
 In re Greenstein, 140 App. Div. 547, 
 125 N. Y. S. 791; In re Prinstein, 
 142 App. Div. 807, 127 N. Y. S. 629; 
 In re Harrington, 146 App. Div. 219, 
 130 N. Y. S. 920, denying rehearing 
 140 App. Div. 939, 125 N. Y. S. 1123. 
 
 North Dakota. — In re Whittemore, 
 14 N. D. 487, 105 N. W. 232; In re 
 Maloney, 21 N. D. 157, 129 N. W. 74. 
 
 Oregon. — Ex p. Miller, 37 Ore. 304, 
 60 Pac. 999; Ex p. Eastham, 46 Ore. 
 475, 80 Pac. 1057; Ex p. St. Rayner, 
 70 Pac. 537. 
 
 Permsylvania. — In re Smith, 179 
 Pa. St. 14, 36 Atl. 134; In re Smith, 
 2 Lack. Leg. N. 152. 
 
 South Carolina. — In re Duncan, 81 
 S. C. 290, 62 S. E. 406; In re Gads- 
 den, 89 S. C. 352, 71 S. E. 952. 
 
 South Dakota. — In re Bgan, 22 S. 
 D. 355, 117 N. W. 874; In re Har- 
 ben, 27 S. D. 31, 129 N. W. 561. 
 
 Tennessee. — Benton v. Henry, 2 
 Colo. 83. 
 
 Vermont. — In re Jones, 70 Vt. 71, 
 39 Atl. 1087. 
 
 Wisconsin. — Flanders v. Keefe, 108 
 Wis. 441, 84 N. W. 878. 
 
 West Virginia. — State v. Stiles, 48 
 W. Va. 425, 37 S. E. 620. 
 
 9 Ex p. Robinson, 19 Wall. 505, 22 
 U. S. (L. ed.) 205; In re Walkey, 
 26 Colo. 161, 56 Pac. 576. 
 
1308 
 
 PEOCEDTJEE, JUDGMENT AND PUNISHMENT. [§ 887 
 
 doubtful character.^" But the charges should be clearly sus- 
 tained,'* by convincing proof/* and a fair preponderance of the 
 evidence." And in some cases it has been held that there must be 
 more than a preponderance of the evidence ; ** and that the proof 
 must satisfy the court with reasonable certainty.'* But the rule, 
 applicable in criminal prosecutions, vyhich requires proof beyond 
 a reasonable doubt, does not apply in disbarment proceedings.'* 
 It has also been held that a judge's ovsru observation may not only 
 be sufficient to originate his jurisdiction over a case of unprofes- 
 sional conduct on the part of an attorney, but that it may also be 
 sufficient to authorize whatever judgment he may pronounce ; and 
 that the knowledge of the court, so obtained, cannot be contradict- 
 ed by witnesses." 
 
 § 887. Allegations and Proof. — As in other proceedings, the 
 proof must agree with the allegations; otherwise disbarment will 
 
 10 People V. Harvey, 41 111. 277; 
 People V. Barker, 56 111. 299; People 
 V. Silha, 252 111. 385, 96 N. E. 826; 
 Tudor V. Com., 84 S. W. 522, 27 Ky. 
 L. Eep. 87; In re Moffett, 154 App. 
 Div. 929, 139 N. Y. S. 545. 
 
 11 Colorado. — People v. Robinson, 
 32 Colo. 241, 75 Pac. 922. 
 
 Illinois. — ^People v. Barker, 56 111. 
 299; People v. Matthews, 217 111. 
 94, 75 N. E. 444; People v. Silha, 252 
 111. 385, 96 N. E. 826. 
 
 Michigan. — In re Clink, 117 Mich. 
 619, 76 N. W. 1, 5 Detroit Leg. N. 
 327. 
 
 'New York. — In re , 1 Hun 
 
 321. 
 
 West Virginia. — State v. Shumate, 
 48 W. Va. 359, 37 S. E. 618; State 
 c. Stiles, 48 W. Va. 425, 37 S. E. 620. 
 
 12 California. — In re Houghton, 67 
 Cal. 511, 8 Pac. 52. 
 
 Colorado. — People v. Pendleton, 17 
 Colo. 544, 30 Pac. 1041; People v. 
 Tanquary, 48 Colo. 122, 109 Pac. 260. 
 
 loioa. — State v. Rohrig, 139 N. W. 
 908. 
 
 Michigan. — In re Wool, 36 Mich. 
 299. 
 
 New Jersey. — In re Noonan, 65 N. 
 J. L. 142, 46 Atl. 570. 
 
 l»In re Darrow, 175 Ind. 44, 92 
 N. E. 369; State Bar Commission «. 
 Sullivan, 35 Okla. 745, 131 Pac. 703; 
 In re Sherin, 27 S. D. 232, Ann. Cas. 
 1913D 446, 130 N. W. 761. 
 
 14 In re Bowman, 7 Mo. App. 569; 
 In re Evans, 22 Utah 366, 62 Pac. 913, 
 83 Am. St. Rep. 794, 53 L.R.A. 952. 
 
 IB State V. Winesj 21 Mont. 464, 
 54 Pac. 562. 
 
 18 In re Wellcome, 23 Mont. 450, 
 59 Pac. 445. 
 
 Compare In re Mashhir, 44 App. 
 Div. 632, 7 N. Y. Ann. Cas. 1, 60 N. 
 Y. S. 451, wherein it was held that 
 charges of grave malpractice should 
 be established beyond a reasonable 
 doubt. 
 
 " Bradley v. Fisher, 7 D. C. 32, af- 
 firmed 13 Wall. 335, 20 U. S. (L. 
 ed.) 646. 
 
§ 888] PEOCEDUEE, JUDGMENT AND PUNISHMENT. 1309 
 
 not be ordered.^' And where an attorney is charged with specific 
 misconduct, it is not permissible to show other similar offenses, 
 except to prove knowledge, ^^ though acts before admission which 
 tended to show lack of integrity have been held material.^", Proof 
 of other misconduct will not justify disbarment, if the misconduct 
 alleged is not proven; * but the court may permit the filing of 
 amended or supplementary charges.* The accusations need not, 
 of course, be proved exactly as alleged,* especially where the re- 
 spondent is advised of the charges against him and as to which 
 proof is offered,* for the technical nicety of the criminal law is not 
 applicable to disbarment proceedings, in which the court inquires 
 into the conduct of its own officers.* 
 
 § 888. Presumptions. — An attorney, against whom disbar- 
 ment proceedings have been preferred, is presumed to be innocent, 
 and to have performed his duties faithfully and in accordance with 
 his oath, until the contrary is established.* But the intention 
 with which an act is done may be presumed from the act itself ; 
 thus, where it was shown that a respondent had wrongfully forged 
 an affidavit, it was presumed, in the absence of proof to the con- 
 trary, that he did so intentionally ; '' and language derogatory of 
 a court is presumed to have been used in its natural and ordinary 
 
 18 Calif orma. — In re Luce, 83 Cal. 2 See supra, § 875, note 
 
 303, 23 Pac. 350. 8 Bar Assoc, of Boston v. Green- 
 
 CoZorodo.— People v. Groddard, 11 hood, 168 Mass. 169, 46 N. E. 568. 
 
 Colo. 259, 18 Pac. 338. * Bar Assoc, of Boston v. Scott, 
 
 Cormecticut. — Grievance Committee 209 Mass. 200, 95 N. E. 402. 
 
 V. Ennis, 84 Conn. 594, 80 Atl. 767. B See supra, § 873. 
 
 District of Columbia. — Garfield v. *In re Haymond, 121 Cal. 385, 53 
 
 U. S., 32 App. Cas. 153. Pac. 899; In re Parsons, 35 Mont. 
 
 Illinois. — People v. Allison, 68 111. 478, 90 Pac. 163; In re Newby, 82 
 
 151. Neb. 235, 117 N. W. 691 ; In re Gads- 
 
 Utah.— In re Evans, 130 Pac. 217. den, 89 S. C. 352, 71 S. E. 952. Com- 
 
 18 In re Evans, (Utah) 130 Pac. pare People v. Webster, 28 Colo. 223, 
 
 217. 64 Pac. 207; In re Spenser, 143 App. 
 
 80 In re Platz, (Utah) 132 Pac. Div. 229, 128 N. Y. S. 168. 
 
 390. 7 Ex p. Walls, 64 Ind. 461. 
 
 lEx p. Bradley, 7 Wall. 364, 19 
 U. S. (L. ed.) 214; People v. Mat- 
 thews, 217 111. 94, 75 N. E. 444. 
 
1310 PEOCEDtTEE, JUDGMENT AND PUNISHMENT. [§§ 889, 890 
 
 significance, notwithstanding a disavowal of contemptuous intent 
 by the respondent.' 
 
 § 889. Evidence of Accomplice. — The rule that one accused 
 of crime cannot be convicted on the uncorroborated evidence of an 
 accomplice, does not extend to disbarment proceedings predicated 
 on criminal misconduct on the part of the respondent ; but the ex- 
 tent to which corroboration is necessary in such a proceeding is for 
 the determination of the court in each case. And where it is as- 
 serted that an attorney, knowing that his client sought to recover 
 on perjured testimony, continued the suit and insisted on a ver- 
 dict, the testimony of such client need not be corroborated as to 
 every fact or circumstance which tends to establish the respond- 
 ent's guilt ; but it will be sufficient if it is so corroborated as to con- 
 nect the respondent with the commission of such misconduct, and 
 this may be shown by the fact that he continued to prosecute the 
 action.' But the testimony of a witness whom an attorney was 
 charged with having bribed, is not sufficient to sustain the charge, 
 where several other persons, who were present at the time of the 
 alleged bribery, testified that no bribe was offered.^" 
 
 § 890. Affidavits and Depositions. — The respondent, in dis- 
 barment proceedings, is entitled to confront the witnesses, and to 
 subject them to cross-examination ; ^* and the contents of affidavits 
 which have been filed as a basis for the commencement of the pro- 
 ceedings, cannot be considered as evidence in support of the accu- 
 sations on the trial of the issue. ^* But disbarment proceedings do 
 not partake of the nature of a criminal prosecution ; ^' and, there- 
 fore, it has been held that depositions may be read in evidence on 
 the hearing thereof,^* providing, of course, that they are other- 
 
 8 See supra, § 784. Pac. 440; In re Eldridge, 82 N. Y. 
 
 9 In re Hardenbrook, 135 App. Div. 161, 37, Am. Eep. 558, 2 Ky. L. Eep. 
 634, 121 N. Y. S. 250, affirmed 199 75; In re Simpson, 9 N. D. 379, 83 
 N. Y. 539, 92 N. E. 1086. N. W. 541. 
 
 10 Walker v. State, 4 W. Va. 749. is See supra, § 867. 
 
 11 In re Eldridge, 82 N. Y. 161, 37 U United States.— See Ex p. Burr, 
 Am. Rep. 558 (See also mem. in 2 2 Cranch (C. C.) 391, 1 Wheel. Crim. 
 Ky. L. Rep. 75). (N. Y.) 503, 4 Fed. Cas. No. 2,186. 
 
 12 In re Burnette, 70 Kan. 229, 78 Connecticut. — In re Durant, 80 
 
§ 891] PEOCEDUKE, JUDGMENT AND PtrNISHMElIT. 1311 
 
 wise competent. '' In some jurisdictions, however, depositions are 
 not admissible, over objection, in disbarment proceedings ; ^* and 
 in other states it has been held that the evidence cannot be taken 
 before a referee or commissioner, on the theory that the court 
 should see and hear the witnesses personally." But the right to 
 meet the witnesses face to face is a personal one, which the respond* 
 ent may waive.** 
 
 § 891. Records and Proceedings in Other Actions and 
 Courts. — A record showing the disbarment of the respondent in 
 another jurisdiction, or in another court within the same juris- 
 diction, is competent evidence against him, but it is not conclu- 
 sive ; and disbarment will be ordered, as a general rule, only as the 
 result of an independent investigation." But the court will not 
 examine the evidence taken in another state to determine whether 
 the respondent should be disbarred upon the case there presented.*" 
 In like manner, the records of other actions may be offered in evi- 
 dence in disbarment proceedings where they tend to establish the 
 charges preferred.* In some jurisdictions, however, the record 
 
 Conn. 140, 10 Ann. Cas. 539, 67 Atl. N. Y. S. 1018; In re Orwig, 1 W. 
 
 497. N. C. (Pa.) 148. 
 
 Florida. — State v. McRae, 49 Fla. Compare People v. Hill, 182 111. 
 
 389, 6 Ann. Cas. 580, 38 So. 605. 425, 55 N. E. 542, wherein it was 
 
 ZoTOO. — state v. Mosher, 128 la. 82, held that a judgment of the circuit 
 
 5 Ann. Cas. 984, 103 N. W. 105. court disbarring an attorney, is con- 
 
 Kansas. — See In re Burnette, 73 elusive against him in subsequent 
 
 Kan. 609, 85 Pac. 575. proceedings to disbar him in the su- 
 
 Montana. — In re Wellcome, 23 preme court on the same chaiges. 
 
 Mont. 140, 259, 58 Pac. 45, 711. gee also People v. Miller, 195 111. 
 
 15 Garfield v. V. S., 32 App. Cas. g^l, 63 N. E. 504. 
 
 (D. C.) 109. 20jjj j,g Baum, 10 Mont. 223, 25 
 
 18 In re Eldridge, 82 N. Y. 161, ^^ gg 
 
 37 Am. Rep. 558; In re Attorney, 83 , -n , n,-o ■ mo m o^/^ on. 
 
 N. Y. 164, 23 Alb. L. J. 129. ^, ' I'^lH ''"J^^"^"' "" "^- ^''''' 
 
 "See Lpra. § 883. ^- ^- ^^^ ' ^^°P^« "• ^'^°'' '*« "^• 
 
 18 In re 86 N. Y. 563. ^^^' ^^ ^- ^- ^^''' ^^^ ^™- ^*- ^^P" 
 
 19 Bradley v. Fisher, 13 Wall.' 335, 239; State v. Stringfellow, 128 La. 
 20 V. S. (L. ed.) 646; Ex p. Tilling- 463, 54 So. 943; In re Ebbs, 150 N. C. 
 hast, 4 Pet. 108, 7 U. S. (L. ed.) 4*, 17 Ann. Cas. 592, 63 S. E. 190, 19 
 798; In re Thatcher, 190 Fed. 969; L.R.A.(N.S.) 892; State v. Chapman, 
 In re Joseph, 125 App. Div. 544, 109 11 Ohio 430. Compm-e Dillon v. 
 
1312 PEOCEDURE, JUDGMENT AND PUNISHli^piirT. [§§ 892, 893 
 
 of conviction of certain criminal misconduct, in itself, warrants 
 disbarment.^ 
 
 § 892. Failure of Respondent to Testify. — A proceeding 
 for disbarment is not a criminal prosecution in the sense that the 
 respondent's failure to testify shall not be used to his prejudice.' 
 His failure to explain incriminating facts will be considered in 
 connection with the other evidence presented,* and his refusal to 
 testify will give rise to a presumption of the truth of facts which 
 are fairly established by the evidence and which must have been 
 known to him.* But the mere fact that the respondent has re- 
 fused to testify does not, of course, dispense with the necessity of 
 proving the accusations made against him ; his innocence remains 
 until it appears with reasonable certainty that he is guilty, and 
 it then becomes incumbent on him to rebut such proof.* 
 
 Findings, Verdict, Judgment and Punishment. 
 
 § 893. In General. — The findings in a disbarment case, as in 
 other civil actions or procedings, must be consistent with each 
 other and must be based on competent evidence.'' Where there are 
 several charges against an attorney, the finding or judgment against 
 him should specify the particular charge or charges upon which 
 
 State, 6 Tex. 55; In re Evans, (Utah) dence, and made an additional find- 
 
 130 Pae. 217. ing, based on the legal fiction of ad- 
 
 2 See supra, § 858. mission by demurrer in a, civil action 
 
 * In re Wellcome, 23 Mont. 450, 59 against the attorneys, in which they 
 
 Pac. 445; In re Randel, 158 N. Y. 216, demurred to the complaint; and such 
 
 52 N. E. 1106. additional finding was not only at 
 
 4 In re Burnette, 73 Kan. 609, 85 variance with the findings of the ref- 
 
 Pac. 575. eree, but was inconsistent with other 
 
 6 In re Randel, 158 N. Y. 216, 52 N. additional findings of the court, dis- 
 
 E. 1106. closing facts showing that the con- 
 
 6 In re Wellcome, 23 Mont. 450, 59 tract was not champertous. Held, 
 
 Pac. 445. that the judgment of disbarment en- 
 
 ' An information to disbar attor- tered thereon was void. In re Evans, 
 neys, charged them with entering into (Utah) 130 Pac. 217, vacating, on re- 
 ft champertous contract. The referee hearing, judgment of disbarment in 22 
 did not find that the contract was Utah 366, 62 Pae. 913, 83 Am. St. Rep. 
 champertous, and the court approved 794, 53 L.R.A. 952. 
 the findings as supported by the evi- 
 
§ 893] PBOCEDTJEE, JUDGMENT AND PUNISHMENT. 1313 
 
 his guilt is pronounced, so that if he is found guilty of only part 
 of the charges, it may not appear that he was guilty of all.' On 
 the other hand, it is ordinarily sufficient that the guilt of the at- 
 torney appear from an inspection of the final order or judgment 
 when read with the charge in the petition or other formal accusa- 
 tion; and in such a case the final order in judgment need only re- 
 cite that the application for disbarment is granted.^ A variance 
 that might be fatal to the prosecution in a criminal case is not 
 necessarily important in a disbarment proceeding, and it is not a 
 valid ground of objection that the findings do not exactly conform 
 to the specifications. So when the facts found, with the infer- 
 ences that may be drawn from them, warrant a finding that the 
 accused attorney was guilty of deceit and gross misconduct in his 
 office, it is immaterial that, m making his findings of fact, the 
 judge has not attempted to make a complete analysis of the con- 
 duet described, or to state all the particulars in which it was cul- 
 pable.'" Whether or not the rule of criminal procedure that a 
 special verdict must find all the facts and circumstances essential 
 to constitute the offense, applies with full force to a disbarment 
 proceeding, it is obvious that in jurisdictions where the practice 
 prevails of trying disbarment cases by jury, a special verdict in 
 such a case must be sufficiently specific and comprehensive to es- 
 tablish the attorney's guilt.''* In disbarment proceedings, as in all 
 ■civil actions, the court may direct a verdict where the evidence is 
 uncontroverted ; ^^ hence where the uncontroverted evidence shows 
 grounds for disbarment, the attorney cannot complain because the 
 
 8 Perry v. State, 3 G. Greene (la.) an attorney can be given upon a spe- 
 550. cial verdict "that the defendant was 
 
 In Missouri the statute requires retained as an attorney at law by B. 
 
 that the precise cause for suspending in the case of A. v. B. before the said 
 
 an attorney must appear in the order defendant was retained by said A. ; " 
 
 ■of suspension. State v. Watkins, 3 it not appearing that the defendant 
 
 Mo. 4S0. was ever retained by A., or that he 
 
 9 State V. Howard, 112 la. 256, 83 acted from a corrupt motive, and not 
 N. W. 975; In re Shepard, 109 Mich, from inadvertence, or some justifiable 
 63], 67 N". W. 971. cause. 
 
 It Bar Assoc, of Boston v. Green- l^ Wernimont r. State, 101 Ark. 
 
 hood, 16S Mass. 169, 46 N. E. 568. 210, Ann. Cas. 1913D 1156, 142 S. W. 
 
 11 Jackson i. State, 21 Tex. 668, 194. 
 iolding that no Judgment disbarring 
 Attys. at L. Vol. II.— 83. 
 
1314 PEOCEDDEE, JUDGMENT AND PUNISHMENT. [§ 894 
 
 court discharges the jury and itself makes findings and renders 
 judgment of disbarment.'' In the absence of an enabling statute, 
 a court has no power, in a proceeding for the suspension or disbar- 
 ment of an attorney, to render judgment against him for money 
 that he has misappropriated,'* though it has been held that he may 
 be suspended until he makes restitution.'* A judgment of disbar- 
 ment or suspension, rendered by a court of competent jurisdiction, 
 cannot be attacked in a collateral proceeding.'* On the other 
 hand, when a final judgment or order has been rendered in the at- 
 torney's favor, he is protected by the principle of res judicata 
 from further disbarment proceedings based on the same charges.'^ 
 Under some statutes a disbarred or suspended attorney desiring 
 a modification of the decree of suspension or removal, may file a 
 written motion therefor with the court which entered the decree; 
 and if the court is satisfied that he has reformed and is a fit sub- 
 ject for clemency, it will reconsider and modify the decree." A 
 judgment of disbarment may be modified to one of suspension for 
 a short period if it be made to appear to the court that the attorney 
 has become genuinely repentant and may be a fit person to prac- 
 tice law ; and this may be done notwithstanding a previous refusal 
 of an application for his reinstatement." After judgment of dis- 
 barment has been affirmed on appeal and the remittitur issued, ap- 
 plication to modify it should be made to the trial court.^" 
 
 § 894. Punishment. — The grounds for disbarment or suspen- 
 sion have been heretofore discussed,' and need not be further no- 
 ticed in this connection. Having determined that the misconduct 
 
 13 Wernimont v. State, 101 Ark. 16 Philbrook v. Newman, 85 Fed. 
 
 210, Ann. Cas. 1913D 1156, 142 S. W. 139; Smith v. State, 5 Tex. 578. 
 
 194. "Com. V. McKay, (Ky.) 20 S. W. 
 
 1* Dawson v. Compton, 7 Blackf. 276; In re Houghton, 9 S. D. 457, 70 
 
 (Ind.) 421. N. W. 634. 
 
 Under Indiana Code, § 778, on a l* In re Burke, 11 Ohio Cir. Dee. 
 
 motion to suspend an attorney, a 397, 21 Ohio Cir. Ct. 34. 
 
 judgment may be rendered against W In re Egan, 27 S. D. 16, 129 N. 
 
 him for the amount of money with- W. 365. 
 
 held by him from the moving party, 20 In re Wharton, 130 Cal. 486, 62 
 
 as alleged in the motion. Eeilly v. Pao. 741. 
 
 Cavanaugh, 32 Ind. 214. ISee supra, §§ 773-864. 
 
 15 See infra, § 894. 
 
§ 894] paooEDUBE, judgment and punishment. 131& 
 
 of an attorney merits discipline, the court is confronted with the 
 question of the character and extent of the punishment that should 
 be inflicted. Unless the act of the attorney is one for which dis- 
 barment is made a penalty by a mandatory statute, the solution 
 of this question frequently involves so many considerations of pub- 
 lic policy and concrete justice, dependent upon the gravity and 
 consequences of the misconduct, the age, character and reputation 
 of the attorney, the probability of his reformation, the circum- 
 stances attending the commission of the offense, and the like, that 
 no fixed or arbitrary rules have been, or properly can be, adopted 
 by the courts.^ It is clear, of course, that when an attorney's mis- 
 conduct is such as to demonstrate that he is unfit to practice, his 
 license should be revoked for the protection of the court and the 
 proper administration of justice.* On this theory it has been said 
 that when a lawyer has been convicted of want of honesty and in- 
 tegrity, it cannot be claimed that he should be suspended rather 
 than disbarred ; * and that when he is guilty of misappropriating 
 money, judgment of suspension instead of disbarment should be 
 rendered only if mitigating circumstances are shown.* But the 
 practice is by no means uniform on this point.^ On the other 
 
 3 Under a statute providing that an Div. 378, 105 N. Y. S. 84; New York 
 
 attorney may be "removed" for mis- Bar Assoc, v. Chappell, 131 App. Div. 
 
 conduct, the removal may be absolute, 69, 115 N. Y. S. 868 ; Matter of Gifu- 
 
 leaving the attorney to apply for re- ni, 137 App. Div. 351, 121 N. Y. S. 
 
 admission if his offense was of such 1131 ; Matter of Flower, 138 App. Div. 
 
 a kind that, after a lapse of time, he 102, 122 N. Y. S. 886. See generally 
 
 can satisfy the court that he has be- § 804 et seq. 
 
 come trustworthy; or for a stated Illness <md Poverty No Eaccuse 
 
 time, if the court is of opinion that for Fraudulent Misappropriation of 
 
 the interests of the public will be suf- Money. — Matter of Rosenthal, 137 
 
 fieiently protected. Boston Bar Ass'n App. Div. 772, 122 N. Y. S. 471 ; 
 
 V. Greenhood, 168 Mass. 169, 46 N. E. Matter of Levy, 138 App. Div. 896, 
 
 568. See also Boston Bar Ass'n v. 122 N. Y. S. 1134. 
 
 Scott, 209 Mass. 200, 95 N. E. 402. That the amount misappropriated 
 
 3 Fairfield County Bar v. Taylor, 60 is small, is not a mitigating circum- 
 
 Conn. 11, 22 Atl. 441, 13 L.R.A. 767; stance. The standard that the court 
 
 State t'. Rohrig, (la.) 139N. W. 908; requires of its officers is not to be 
 
 In re Percy, 36 N. Y. 651. measured in dollars and cents. Mat- 
 
 *In re Platz, (Utah) 132 Pac. 390. ter of Stern, 120 App. Div. 375, 105 
 
 s In re Buchanan, 28 Mo. App. 230. N. Y. S. 199. 
 
 See also Matter of Cohn, 120 App. 6 See In re Moore, 72 Cal. 359, 13 
 
1316 PEOCEDUKE, JUDGMENT AND PUNISHMENT. [y 6-J-k 
 
 hand, in the absence of a controlling statute, it has been held that 
 to justify the disbarment of an attorney one of three things should 
 be established: (1) Conviction of crime; (2) evidence which, in 
 the judgment of the court, shoves that a crime has been committed, 
 and that the facts proven would justify a conviction thereof; (3) 
 such intentional fraud upon the court or a client as shows evidence 
 of moral turpitude ; and that for less offenses the court should im- 
 pose such temporary suspension as it may deem proper.'' But this 
 enumeration of grounds is plainly incomplete, as it omits contempt 
 of court * and non-criminal misconduct towards others than the 
 court or a client.' Perhaps the only definite rule on this branch 
 of the subject is that whether the offending attorney shall be dis- 
 barred or only suspended from practice is a question resting in 
 the sound discretion of the court invested with the power to ren- 
 der the judgment.*" It is a generally accepted principle, however, 
 that since the primary purpose of a disbarment proceeding is not 
 punishment, but the protection of the courts and the public, dis- 
 barment should never be decreed if any discipline less severe would 
 accomplish the desired result, as when there are prospects that the 
 attorney's conduct and character may undergo reformation.*' The 
 
 Pac. 885, where the attorney waa sus- IJ United States. — Bradley v. Fish- 
 
 peiided for five years; In re Green- er, 13 Wall. 354, 20 U. S. (L. ed.) 
 
 lierg, 146 App. Div. 945, 131 N. Y. S. 652. 
 
 531, suspension for six months; In re New Bam/psMre. — In re Hobbs, 75 
 
 Z . 89 Mo. App. 426, suspension N. H. 285, 73 Atl. 303. 
 
 for six montlis. See also In re Sayer, 'New Yorfc.— Matter of V , 10 
 
 146 App. Div. 928, 131 N. Y. S. 381. App. Div. 491, 42 N. Y. S. 268; Mat- 
 
 7 In re Cahill, 66 N. J. L. 527, 50 ter of Eeifschneider, 60 App. Div. 478, 
 Atl. 119. 69 N. Y. S. 1069. 
 
 8 See supra, § 792. Oregon. — See Ex p. Tanner, 49 Ore. 
 
 9 See supra, §§ 794, 832, etc. 31, 88 Pac. 301. 
 
 10 Bar Assoc, of Boston v. Green- South Carolina. — In re Evans, 94 S. 
 hood, 168 Mass. 169, 46 N. E. 568; C. 414, 78 S. E. 227. 
 
 Matter of V , 10 App. Div. 491, "The fact that the respondent has 
 
 42 N. Y. S. 268; In re Goodman, 199 frankly admitted his offense, and has 
 
 N. Y. 143, 92 N. E. 211; In re Hop- not attempted to uphold it by false 
 
 kins, 54 Wash. 569, 103 Pac. 805. statements or perjured testimony. 
 
 Whether this discretion will be re- justifies the expectation that he will 
 
 viewed by an appellate court, see take a lesson from this occurrence, 
 
 infra>, "Review of Disbarment Pro- and will hereafter conduct himself 
 
 ceedings," § 896 et seq. honestly in his relations with his 
 
§ 894] PEOCEDUEE., JUDGMENT AND PUNISHMENT. 
 
 1317 
 
 previous good character and reputation of the attorney will gener- 
 ally be considered as entitling him to some leniency at the hands 
 of the court, ^* though it will not prevent his disbarment if his mis- 
 conduct is gross and inexcusable.'* On the other hand, a former 
 disbarment '* or suspension '* will naturally be regarded as a cir- 
 cumstance adverse to the attorney. Mitigating or extenuating cir- 
 cumstances often induce the court to render a judgment of sus- 
 pension rather than disbarment,'* as where the attorney was young 
 
 clients. If he had adopted a differ- 
 ent course, and attempted to deny 
 the charges, and to sustain that de- 
 nial by false testimony, the court 
 would have been compelled to disbar 
 him." In re Greenberg, 146 App. 
 Div. 945, 131 N. Y. S. 531. 
 
 Where an attorney had been guilty 
 of serious misconduct, but the matter 
 arose years ago, and had been ad- 
 justed by the parties whose private 
 interests were affected, he was sus- 
 pended for one year. In re Aldrioh, 
 (Vt.) 86 Atl. 801. 
 
 li California. — In re Stephens, 84 
 Cal. 77, 24 Pae. 46. 
 
 Colorado. — People v. Green, 9 Colo. 
 506, 13 Pac. 514. 
 
 New York. — Matter of Lash, 150 
 App. Div. 467, 135 N. Y. S. 370 ; Mat- 
 ter of Schleimer, 150 App. Div. 507, 
 135 N. Y. S. 406; Matter of Sanborn, 
 152 App. Div. 935, 137 N. Y. S. 1141. 
 Compare In re Burr, 1 Wheel. Crim. 
 503. 
 
 Ohio. — In re Cunningham, 9 Ohio 
 Dec. (Reprint) 717, 16 Cine. L. Bui. 
 447. 
 
 Pennsylvania. — In re Smith, 179 
 Pa. St. 14, 36 Atl. 134. 
 
 South Dakota. — In re Sherin, 27 S. 
 D. 232, Ann. Gas. 1913D 446, 130 N. 
 W. 761, 40 L.E.A.(N.S.) 801. 
 
 13 Matter of Clark, 184 N. Y. 222, 
 77 N. E. 1. 
 
 "People V. Green, 9 Colo. 506, 13 
 Pac. 514. 
 
 16 In re Randall, 122 App. Div. 1, 
 106 N. Y. S. 943, affirmed 196 N. Y. 
 569, 90 N. E. 1165; Matter of Levy, 
 138 App. Div. 896, 122 N. Y. S. 1134. 
 See also Matter of Goldberg, 49 App. 
 Div. 357, 63 N. Y. S. 392. 
 
 16 Matter of Gluck, 139 App. Div. 
 894, 123 N. Y. S. 857; State v. Tanner,, 
 49 Ore. 31, 88 Pac. 301. 
 
 Doubt Occasioned by the Testimomf 
 on Part of the Charges. — See Matter 
 of Goodman, 135 App. Div. 594, 120 
 N. Y. S. 801, affirmed 199 N. Y. 143, 
 92 N. E. 211 ; Matter of Boxman, 148; 
 App. Div. 286, 132 N. Y. S. 217. 
 
 Plot against Attorney. — The attor- 
 ney of one convicted of murder hired! 
 a detective to procure a. woman to 
 sign an affidavit as to a pretended con- 
 versation with deceased, in which the 
 latter stated it was his intention to 
 commit suicide. The detective in- 
 formed the prosecuting attorney, who 
 secured a woman to sign the affidavit, 
 which was prepared by the attorney, 
 and signed without being read to the 
 deponent, who was paid therefor. The 
 affidavit was used on a motion for ai 
 new trial, when the attorney stated' 
 that it had been written at deponent's 
 dictation. It was held that while the 
 attorney was guilty of professional 
 misconduct meriting discipline, the 
 
1318 
 
 PEOCEDUEE, JUDGMENT AND PUNISHMENT. [§ 894i 
 
 and inexperienced when he committed the offense," or was actu- 
 ated by excessive zeal for his client's cause rather than by improper 
 motives ; ^' though neither youth and lack of experience,^® nor ex- 
 cessive zeal,^ will justify criminal or dishonorable conduct. So, 
 too, the fact that the attorney is the first one who has been brought 
 before the court on the particular charge involved,^* while others 
 have indulged in similar practices,^ or that he committed the of- 
 fense before that particular species of misconduct had been judi- 
 cially declared to be unprofessional,* has been deemed a reason for 
 suspending rather than disbarring him; as where an attorney ad- 
 vertised for divorce cases, apparently without knowledge that it 
 was wrong to do so, and discontinued the practice on or before the 
 commencement of the disbarment proceeding.* But when an at- 
 torney is guilty of misconduct clearly warranting his disbarment, 
 the fact that there are other attorneys at the same bar equally rep- 
 
 plot against him would mitigate his 
 punishment, which was fixed as sus- 
 pension for one year. In re Shoe- 
 maliier, 38 W. N. C. 54, 5 Pa. Dist. 
 Ct. 161, affirmed 2 Pa. Super. Ct. 27. 
 "In re Goldberg, 79 Hun 616, 29 
 N. Y. S. 972; Matter of Goodman, 
 135 App. Div. 594, 120 N. Y. S. 801, 
 affirmed 199 N. Y. 143, 92 N..E. 211; 
 Matter of Cliadsey, 141 App. Div. 458, 
 126 N. Y. S. 456, affirmed 201 N. Y. 
 572, 95 N. E. 1124; Matter of Lash, 
 150 App. Div. 467, 135 N. Y. S. 370. 
 
 18 People V. Green, 9 Colo. 506, 13 
 Pac. 514; In re Robinson, 140 App. 
 Div. 329, 125 N. Y. S. 193 ; Matter of 
 •Chadsey, 141 App. Div. 458, 126 N. 
 T. S. 456, affirmed 201 N. Y. 572, 95 
 ISr. E. 1124. 
 
 19 Matter of Rosenthal, 137 App. 
 Div. 772, 122 N. Y. S. 471. 
 
 20 Matter of Robinson, 140 App. 
 Div. 329, 125 N. Y. S. 193, where the 
 temptation of the attorney was great 
 by reason of impending danger to a 
 wealthy and powerful client. Matter 
 of Chadsey, 141 App. Div. 458, 126 
 
 N. Y. S. 456, affirmed 201 N. Y. 572, 
 95 N. E. 1124. 
 
 21 Matter of Shay, 133 App. Div. 
 547, 118 N. Y. S. 146, affirmed 196 N. 
 Y. 530, 89 N. E. 1112; Matter of 
 Rothschild, 140 App. Div. 583, 125 
 N. Y. S. 629. 
 
 lln re Shay, 133 App. Div. 547, 
 118 N. Y. S. 146, affirmed 196 N. Y. 
 530, 89 N. E. 1112, contracting to di- 
 vide with a layman the compensation 
 to be received by the attorney from 
 negligence cases procured by the lay- 
 man, such agreements being prohibi- 
 ted by statute but being commonly 
 made by lawyers engaged in prosecut- 
 ing such actions. It was said in that 
 case, however, that these circum- 
 stances would not be considered in 
 future cases of that kind. 
 
 ^ In re Imperatori, 152 App. Div. 
 86, 136 N. Y. S. 675. 
 
 8 People V. MacCabe, 18 Colo. 186, 
 32 Pac. 280, 36 Am. St. Rep. 270, 19 
 L.R.A. 231 ; In re Schnitzer, 33 Nev. 
 581, 112 Pac. 848. 
 
§ 89-1] PEOCEDITEE, JUDGMENT AND PUNISHMENT, 
 
 1319 
 
 rehensible is not a mitigating circumstance.* Sometimes the court 
 suspends the attorney for a stated period and until further order 
 of the court, thus reserving to itself the power to require the at- 
 torney to show as a condition to reinstatement that he has ab- 
 stained from practice and conducted himself properly during the 
 time of his suspension.* In one case an attorney was indefinitely 
 suspended, with the privilege, however, to move before the court 
 for reinstatement after the expiration of two years, upon satisfac- 
 tory proof that he had not, for two years immediately preceding 
 his application, used intoxicating liquors, and that he had re- 
 formed his character. ° In some states an attorney may be sus- 
 pended for a certain time and until he repays money that he has 
 misappropriated,' or pays the costs of the proceedings against 
 him.' But the better opinion is that disbarment proceedings may 
 not be used as a means of compelling an attorney to repay money,® 
 and that in the absence of statutory authority costs cannot be 
 awarded against him in such proceedings.''"' Although the statutes 
 generally prescribe disbarment or suspension, in the alternative, as 
 
 4 In re Platz, (Utah) 132 Pae. 390. 
 Compare Matter of Shay, 133 App. 
 Div. 547, 118 N. Y. S. 146, affirmed 
 196 N. Y. 530, 89 N. E. 1112. 
 
 5 In re Rothschild, 140 App. Div. 
 583, 125 N. Y. S. 629. See also Mat- 
 ter of Chadsey, 141 App. Div. 458, 126 
 N. Y. S. 456, affirmed 201 N. Y. 572, 
 95 N. E. 1124; Matter of Cohn, 141 
 App. Div. 511, 126 N. Y. S. 218; In 
 re Sayer, 146 App. Div. 928, 131 N. 
 Y. S. 381; Matter of Boxman, 148 
 App. Div. 286, 132 N. Y. S. 217; Mat- 
 ter of Lash, 150 App. Div. 467, 135 N. 
 Y. S. 370. 
 
 In a collateral proceeding, a judg- 
 ment disbarring an attorney for three 
 years, and "until the further order of 
 the court," cannot be held invalidated 
 by the quoted clause, even if it is 
 void, for it may be considered as mere 
 surplusage. Philbrook v. Newman, 
 85 Fed. 139, where the court, how- 
 
 ever, expressed no opinion as to the 
 validity of the clause. 
 
 8 In re Evans, 94 S. C. 414, 78 S. E. 
 227. 
 
 7 In re Tyler, 78 Cal. 307, 20 Pac. 
 674, 12 Am. St. Eep. 55, a case which 
 apparently confuses a disbarment 
 proceeding with a summary proceed- 
 ing to compel an attorney to repay 
 money received by him in his pro- 
 fessional capacity. 
 
 8 People V. Brown, 17 Colo. 431, 30 
 Pac. 338; People v. MacCabe, 18 Colo. 
 186, 32 Pac. 280, 36 Am. St. Kep. 270, 
 19 L.R.A. 231. 
 
 9 Matter of Eockmore, 130 App. 
 Div. 586, 117 N. Y. S. 512; Matter of 
 Fox, 150 App. Div. 602, 135 N. Y. S. 
 821, refusing to dismiss Charges on 
 condition that the attorney repay to 
 his client money misappropriated. 
 
 10 See infra, § ,895. 
 
1320 
 
 PEOCEDUEE, JUDGMENT AND PUNISHMENT, [§ 894- 
 
 a penalty for professional misconduct/' in the absence of express- 
 restriction these statutes do not limit the inherent common-law 
 power of the courts,'^ which may be exercised to inflict a less se- 
 vere punishment for conduct which, under the circumstances dis- 
 closed, is not grave enough to warrant the penalty of suspension 
 or disbarment.'* In such cases, therefore, the attorney may be rep- 
 rimanded from the bench in open court,'* or may be censured in 
 the court's written opinion, which will be published in the official 
 reports,'* or the proceedings may be dismissed with a mere expres- 
 sion of the court's disapproval of the attorney's conduct.'® When, 
 
 11 See the various statutes on this 
 subject. 
 
 12 See supra, §§ 758, 759. 
 
 13 Matter of Reifschneider, 60 App. 
 Div. 478, 69 N. Y. S. 1069; In re Gads- 
 den, 89 S. C. 352, 71 S. E. 952. 
 
 Contra. — It has been lield that a 
 court clothed by statute with power 
 to strike the name of an attorney 
 from the rolls for specified offenses 
 has no power to impose a less severe 
 penalty. In re Burton, [1903] 2 K. 
 B. (Eng.) 300, 72 L. J. K. B. 752; 
 In re Kelley, [1895] 1 Q. B. (Eng.) 
 180; In re Forbes, 2 N. W. Terr. 410. 
 Compare In re Lamb, 23 Q. B. D. 
 (Eng.) 477. 
 
 14 Matter of Reifschneider, 60 App. 
 Div. 478, 69 N. Y. S. 1069, where the 
 attorney was a young man against 
 whom no charges had previously been 
 brought. 
 
 IB Matter of Manheim, 113 App. 
 Div. 136, 99 N. Y. S. 87. This is 
 frequently deemed sufficient. See 
 Matter of Woytisek, 120 App. Div. 
 373, 105 N. Y. S. 144; Matter of Doyle, 
 138 App. Div. 99, 122 N. Y. S. 1000; 
 Matter of Boehm, 150 App. Div. 443, 
 135 N. Y. S. 42 ; Matter of Cohn, 150 
 App. Div. 470, 134 N. Y. S. 1103; 
 Matter of Schleimer, 150 App. Div. 
 507, 135 N. Y. S. 406; Matter of Fox, 
 
 150 App. Div. 602, 135 N. Y. S. 821 ; 
 Matter of Barnard, 151 App. Div. 580, 
 136 N. Y. S. 185 ; Matter of Sanborn,, 
 152 App. Div. 935, 137 N. Y. S. 1141 ; 
 Matter of Kisselburgh, 153 App. Div. 
 884, 137 N. Y. S. 1060. 
 
 In New York, by chapter 253 of the- 
 Laws of 1912, the Appellate Division 
 of the Supreme Court is expressly au- 
 thorized to censure as well as to sus- 
 pend or remove attorneys guilty of 
 misconduct — a provision which is ap- 
 parently superfluous in view of pre- 
 vious decisions of that court. 
 
 16 Matter of Hutson, 127 App. Div. 
 492, 111 N. Y. S. 731, where the at- 
 torney, some time before the proceed- 
 ings were begun, had discontinued the- 
 objectionable practice complained of>. 
 In re Gadsden, 89 S. C. 352, 71 S. E.. 
 952, where the attorney had been 
 guilty of no fraud, and his miscon- 
 duct was induced by zeal for his client.- 
 See also State v. Fourchy, 106 La.. 
 743, 31 So. 325. 
 
 Opinion of Committee of the Bar.. 
 — In some states this is done in def- 
 erence to the opinion of a eommittee- 
 of the bar who have appeared in the- 
 proceedings. In re Snow, 27 Utah. 
 265, 75 Pac. 741; In re Aldrich, (Vt.). 
 86 Atl. 801. 
 
§ 895] PBOCEDTJEE, JUDGMENT AND PUNISHMENT. 
 
 1321 
 
 iowever, the court fails to find the attorney guilty, and dismisses: 
 the charges for further proceedings, it has no power to render 
 judgment that he be reprimanded." 
 
 § 895. Costs and Expenses of Proceeding.— Since costs are 
 solely the creature of statute, the general rule is that in a disbar- 
 ment proceeding no costs can be awarded to either party against 
 the other in the absence of statutory authority therefor.'* Thus, 
 if the accused attorney is successful he is not entitled to costs. 
 against the persons who instituted the proceedings,'* and if he is 
 disbarred or otherwise disciplined, no costs can be awarded against 
 him.*" In a disbarment proceeding instituted by the state on the 
 complaint of an individual or a bar association, the costs of a suc- 
 cessful appeal by the attorney should not be taxed against the com- 
 plainant or relator,^' but should be borne by the state.' There are 
 cases, however, in which the courts, without referring to any stat- 
 utory authority and without noticing the rule stated, have imposed 
 
 W State V. Tracy, 115 la. 71, 87 N. 
 W. 727. 
 
 18 In re Watt, 154 Fed. 678 ; Mor- 
 ton V. Watson, 60 Neb. 672, 84 N. W. 
 91; In re Eaton, 7 N. D. 269, 74 N. 
 W. 870; State v. Martin, 45 Wash. 76, 
 87 Pac. 1054. 
 
 In South Dakota the allowance of 
 costs and disbursements is regulated 
 by statute. See In re Egan, 22 S. D. 
 563, 119 N. W. 42; In re Sherin, 28 
 S. D. 420, 133 N. W. 701, modifying 
 27 S. D. 232, Ann. Cas. 1913D 446, 
 130 N. W. 761; In re Kirby, 10 S. D. 
 416, 73 N. W. 908. 
 
 Security for Costs. — An Alabama 
 statute (Gen. Acts 1903, p. 346) 
 makes it the duty of the solicitor to 
 prosecute disbarment proceedings, and 
 provides that the court, on the so- 
 licitor's motion and on good cause 
 shown, may at any time require the 
 Alabama state bar association to 
 give security for the costs of such pro- 
 ceeding, to be approved by the court. 
 
 But security for costs in such a pro- 
 ceeding can be required only on mo- 
 tion of tlie solicitor. Johnson v. 
 State, 152 Ala. 93, 44 So. 671. 
 
 19 Cases in preceding note. 
 
 20 State V. Fisher, 82 Neb. 361, IIT 
 N. W. 882, judgment affirmed on re- 
 hearing 82 Neb. 367, 119 N. W. 249. 
 
 The court may require each party 
 to pay his own costs. State v. Fisher, 
 82 Neb. 361, 117 N. W. 882, judgment 
 affirmed on rehearing, 82 Neb. 367,. 
 119 N. W. 249. 
 
 No costs can be imposed upon the. 
 accused attorney when he is not found 
 guilty. State v. Tracy, 115 la. 71, 
 87 N. W. 727. 
 
 "Turner v. Com., 2 Mete. (Ky.) 
 619; State v. Martin, 45 Wash. 76, 
 87 Pac. 1054. 
 
 The complainant or relator is not 
 really a party. See cases cited supra, 
 this note. 
 
 1 State V. Martin, 45 Wash. 76, 87' 
 Pac. 1054, 
 
1322 
 
 PEOCEDURE, JUDGMENT AND PUNISHMENT. [§ 895 
 
 costs upon the attorney disbarred or suspended,^ or upon the pe- 
 titioners or complainants when the charges were not sustained.' 
 In New York, when an application is made to the supreme court 
 by one attorney to disbar another, the court, by virtue of its au- 
 thority over the conduct of its attorneys, has power, independent 
 of statute, upon determining that the proceedings were instituted 
 in bad faith, to order the disbursements and costs of the motion to 
 be paid by the applicant ; and its decision is not reviewable by the 
 court of appeals.* In some states by statute the expenses and costs 
 of the proceeding are payable by the county,* and it is the settled 
 practice under some of such statutes for the compensation of at- 
 torneys who prosecute the charges to be included in the expenses 
 thus paid.' 
 
 2 In re Washington, 82 Kan. 829, 
 109 Pac. 700; Ex p. Ditchburn, 32 
 Ore. 538, 52 Pac. 694. 
 
 3 State V. Kemp, 82 Mo. 213, where 
 the charges were prosecuted by pri- 
 vate individuals and were entitled in 
 the name of the state, but without au- 
 thority. Tlie court said that if the 
 charges had been prosecuted in the 
 name of the state at the instance of 
 the prosecuting attorney or pursuant 
 to an order of court, costs might 
 properly have been adjudged against 
 the state; but that a person could 
 not of his own motion "set on foot 
 such proceedings in the name of the 
 state and burden it with the costs of 
 failure." 
 
 * In re Kelly, 59 N. Y. 595. See also 
 Matter of Haskell, 150 App. Div. 837, 
 135 N. Y. S. 249 ; Bormay v. Van Ness, 
 26 Misc. 599, 56 N. Y. S. 640. 
 
 5 Mass. R. L. c. 165, § 44; Burrage 
 V. Bristol County, 210 Mass. 299, 96 
 K E. 719 ; N. Y. Judiciary Law, § 88, 
 subd. 5 (formerly Code Civ. Pro. 68) ; 
 
 Matter of V- 
 
 -, TO An-. Div. 491, 
 513, 42 N. Y. S. 268. 
 
 In New York the power of the court 
 to order payment to be made by the 
 county is discretionary, not manda- 
 tory; and if no such order is made, a 
 stenographer who, by consent of coun- 
 sel on both sides, took the minutes of 
 the testimony at the trial and fur- 
 nished copies to the referee and to the 
 parties, can recover his fees from the 
 petitioner and the respondent. Bor- 
 may V. Van Ness, 26 Misc. 599, 56 N. 
 Y. S. 640. 
 
 6 Burrage v. Bristol County, 210 
 Mass. 299, 96 N. E. 719. 
 
 In New York it is the practice in 
 the second department for the pre- 
 siding justice of the appellate divi- 
 sion to award counsel fees to the at- 
 torney who prosecutes the charges, 
 and to direct that payment be made 
 by the county; but this practice is 
 not followed in the first department, 
 where disbarment proceedings are 
 luuch more numerous. 
 
CHAPTEE XXXII. 
 
 REVIEW OF DISBAEJMENT PROCEEDINGS. 
 
 § 896. In General. 
 
 897. Appeal. 
 
 898. Writ of Error. 
 .899. Certiorari. 
 
 900. Mandamus. 
 
 901. By Accuser, Petition or State. 
 
 § 896. In General. — A judgment or order distarring or sus- 
 pending an attorney from practice can usually be reviewed by an 
 appellate court in some form of proceeding, whether it be an ap- 
 peal, writ of error, writ of review, certiorari, or mandamus.^ The 
 right to a review in such cases, as well as the scope thereof, usu- 
 ally depends, however, upon the provisions of the local statutes, 
 which should always be consulted; and in the absence of express 
 statutory authority therefor, the right has been held not to exist.* 
 
 § 897. Appeal. — Under the statutory systems of many ju- 
 risdictions an attorney who has been disbarred or suspended from 
 practice may obtain a review of the proceedings and judgment or 
 order by means of an appeal ; * and in a few states the right of ap- 
 
 1 See the following sections. no power to render a judgment of 
 
 A icrit of review will lie to review disbarment. State v. Laughlin, 73 
 
 an order suspending an attorney Mo. 443. 
 
 from practice, where it appears that * Com. v. Judges, 5 Watts & S. 
 
 the order was made without notice (Pa.) 272. See also State v. John- 
 
 to the attorney, and where he had no aton, 2 Har. & McH. (Md.) 160. But 
 
 opportunity to make a defense. Mc- see In re Trumbore, 2 Penny. (Pa.) 
 
 Namee v. Steele, 8 Idaho 539, 69 Pac. 84, 14 Lane. Bar. 127. See the fol- 
 
 319. lowing section. 
 
 A icrit of prohibition may issue to ' District of Columbia. — In re Ad- 
 prevent an order being entered in -a, riaans, 28 App. Cas. 515. 
 lower court disbarring an attorney, Illinois. — ^Winkelman v. People, 50 
 where it appears that such court has 111. 449. 
 
 1323 
 
1324 
 
 EEVIEW OF DISBARMENT PEOCEEDINGS. 
 
 [§ 897 
 
 peal in cases of this character is conferred and regulated by ex- 
 press provisions of the statutes.* In some cases, however, appeals 
 by attorneys have been entertained ■without any statutory authority 
 
 Indiana. — Heffren v. Jayne, 39 Ind. 
 463, 13 Am. Kep. 281 ;■ Walls v. Pal- 
 mer, 64 Ind. 493 ; Ex parte Trippe, 66 
 Ind. 531. 
 
 Kentucky. — Turner v. Com., 2 
 Mete. 619. See also Wilson v. Pop- 
 ham, 91 Ky. 327, 15 S. W. 859. 
 
 But an appeal does not lie directly 
 to the court of appeals from an order 
 of the Louisville city court, disbar- 
 ring or suspending an attorney from 
 practicing in that' court. Smith v. 
 Com., 1 S. W. 433, 8 Ky. L. Rep. 260. 
 
 MassachMsetts. — Bar Assoc, of Bos- 
 ton V. Greenhood, 168 Mass. 169, 46 
 N. E. 568. 
 
 Michigan. — ^Matter of Wool, 36 
 Mich. 299. 
 
 But an order of the circuit court 
 overruling a demurrer to charges 
 filed in that court against an attor- 
 ney is not reviewable by the supreme 
 court, except after final judgment. 
 In re Eadford, 159 Mich. 91, 123 
 N. W. 546, 16 Detroit Leg. N. 757. 
 
 Missouri. — Shackelford v. McEl- 
 hinney, 241 Mo. 592, 145 S. W. 1139. 
 See also In re Beal, 5 Mo. App. 583; 
 In re Bowman, 7 Mo. App. 569. 
 
 Oklahoma. — In re Brown, 2 Okla. 
 590, 39 Pac. 469, sustaining an ap- 
 peal from an order suspending an at- 
 torney from practice pending trial on 
 an information for his disbarment. 
 
 Tennessee. — Brooks i. Fleming, 6 
 Baxt. 331, holding that an attorney 
 may appeal from an order disbarring 
 liim for contempt of court in dis- 
 obeying an injunction. 
 
 Texas. — Casey v. State, 25 Tex. 
 380, holding that an attorney may 
 
 appeal from a judgment disbarring 
 him for contempt of court involving 
 fraudulent or dishonorable conduct or 
 malpractice. 
 
 Wisconsin. — In re Orton, 54 Wis. 
 379, 11 N. W. 584. 
 
 Appeal by accuser, petitioner or 
 state, see infra, § 901. 
 
 Reprimand and Costs. — It has been 
 held that a judgment reprimanding 
 the attorney and imposing costs upon 
 him is appealable. State v. Tracy, 
 115 la. 71, 87 N. W. 727. On the 
 other hand, it has been held in such 
 a. case that the attorney may appeal 
 from the judgment for costs, but that 
 the reprimand cannot be reviewed. 
 Finley v. Acme Kitchen Furniture 
 Co., 119 Tenn. 698, 109 S. W. 504. 
 
 // the period of suspension has ex- 
 pired when the case is reached in 
 the appellate court, the court will 
 refuse further to examine the record. 
 In re Beal, 5 Mo. App. 583. 
 
 Death of Attorney. — ^An order in 
 an action for divorce, referring to a 
 referee certain charges against one 
 of the attorneys, will not be reviewed 
 on appeal after the death of the at- 
 torney. Beadleston r. Beadleston, 50 
 Hun 603 mem., 2 N. Y. S. 815. 
 
 4 State V. Mosher, 128 la. 82, 5 
 Ann. Cas. 984, 103 N. W. 105; In 
 re Norris, 60 Kan. 649, 57 Pac. 528; 
 In re Burnette, 73 Kan. 609, 85 Pac. 
 575; In re Crum, 7 N. D. 316, 75 N. 
 W. 257; In re Houghton, 5 S. D. 737, 
 59 N. W. 733, holding, however, that 
 the general statute relating to appeals 
 limited the time within which to ap- 
 peal from a judgment of disbarment. 
 
897] 
 
 EEVIEW OF DISBARMENT PEOCEEDINGS. 
 
 1325 
 
 therefor.' In JSTew York the court of appeals has often reviewed 
 disbarment cases on appeal by the attorneys, without questioning 
 its jurisdiction under the constitution or statutes ; * but it has been 
 recently said that such cases were "unique," and that it was "by 
 no means clear" that applications for disbarment were special pro- 
 ceedings within the meaning of the statutes relating to appeals, yet 
 that the practice of entertaining such appeals had become "too well 
 settled to be disturbed." ' In other jurisdictions the attorney's 
 right to appeal in the absence of statutory authority has been de- 
 nied.' The scope of appellate review in some states is limited to 
 questions of law, neither the weight of the evidence nor the discre- 
 tion of the lower court in inflicting punishment being reviewable.' 
 
 5 Fairfield County Bar v. Taylor, GO 
 Conn. 11, 22 Atl. 441, 13 L.R.A. 767 
 (where objections to the appeal were 
 expressly waived) ; Matter of West- 
 cott, 66 Conn. 585, 34 Atl. 505; In 
 re Durant, 80 Conn. 140, 10 Ann. 
 Cas. 539, 67 Atl. 497. 
 
 6 In re Percy, 36 N. Y. 651 ; Matter 
 of Gale, 75 N. Y. 526; In re El- 
 dridge, 82 N. Y. 161, 37 Am. Eep. 
 558, 2 Ky. L. Rep. 75, where the only 
 question was whether the court could 
 review the exercise of discretion by 
 
 the court below; Matter of , 86 
 
 N. Y. 563. 
 
 7 Matter of Droege, 197 N. Y. 44, 
 50, 51, 90 N. E. 340, a, proceeding to 
 remove a city magistrate, in which it 
 was held, however, that the court of 
 appeals could not review the action 
 of the appellate division. 
 
 8 State V. Johnston, 2 Har. & McH. 
 (Md.) 160; Ex p. Biggs, 64 N. Cj 
 
 202, disbarment for contempt; Com. 
 K. Judges, 5 Watts & S. (Pa.) 272. 
 But see In re Trumbore, 2 Penny. 
 (Pa.) 84, 14 Lane. Bar 127. 
 
 9 Bar Assoc, of Boston v. Green- 
 hood, 188 Mass. 169, 46 N. E. 568. 
 See also Boston Bar Ass'n v. Casey, 
 
 196 Mass. 100, 81 N. E. 892; In re 
 Hopkins, 54 Wash. 569, 103 Pac. 805. 
 In New York, on appeal to the 
 court of appeals, the court's power 
 to review ends when it appears that 
 the proceeding has been instituted 
 and conducted in accordance with 
 the rules; that no substantial right 
 of the accused has been violated; 
 that no prejudicial error has been 
 committed in the reception or exclu- 
 sion of evidence; and that theie is 
 some evidence to sustain, the findings 
 on which the judgment is based; the 
 court being without power to review 
 the discretion of the appellate divi- 
 sion in inflicting the punishment. In 
 re Goodman, 199 N. Y. 143, 92 K E. 
 211, affirming 135 App. Div. 594, 120 
 N. Y. S. 801. Formerly the scope of 
 review was broader. Matter of El- 
 dridge, 82 N. Y. 161, 37 Am. Rep. 
 558, where the court said: "While 
 the measure of punishment consequent 
 upon a conclusion of guilt may fairly 
 be said to be within the discretion of 
 the immediate tribunal, the conclu- 
 sion itself, the adjudication of guilt 
 or innocence upon the facts, is not 
 so far the subject of discretion as to 
 be beyond review. The class of or- 
 
1326 
 
 REVIEW OF DISBARMENT PROCEEDINGS. 
 
 [§ 987 
 
 In many other jurisdictions, however, questions of fact and the 
 exercise of discretion by the lower court are subject to review; biit 
 the determination of the lower court will not be disturbed unless 
 it is clearly against the weight of the evidence or unless an abuse 
 of discretion appears.^* The attorney's relation to the court and 
 the character and purpose of the inquiry are such that unless it 
 
 ders not reviewable for that reason 
 are substantially those addressed to 
 the favor of the court, to which the 
 applicant has no absolute right, which 
 may or may not be granted without 
 wrong on either hand. The order 
 in question is not of that character. 
 The guilt or innocence of this appel- 
 lant does not rest in the absolute 
 discretion of any court. An acquit- 
 tal is his right if upon the facts 
 he is not shown to be guilty, and we 
 cannot evade or avoid the inquiry. 
 . . . A plain line of distinction is 
 drawn between proceedings for a 
 contempt occurring in the presence 
 of the judge, and the facts constitut- 
 ing which are certified by him, and 
 eases of professional misconduct out 
 of the immediate presence of the 
 court, where the actual truth is mat- 
 ter of evidence. In the former class 
 of cases it is held that the facts em- 
 bodied in the order of the judge must 
 be taken as true. In the latter, the 
 right of review is asserted not only 
 where there had been want of juris- 
 diction, but also where the court be- 
 low had decided erroneously on the 
 
 testimony." See also Matter of , 
 
 86 N. Y. 563, 575, holding, however, 
 that there must be "an irregularity 
 or plain impropriety in the conduct 
 of the court below" to warrant a re- 
 versal. 
 
 The discretion of the court in im- 
 posing costs upon an attorney who 
 instituted disbarment proceedings in 
 
 bad faith, is not reviewable on ap- 
 peal. In re Kelly, 59 N. Y. 595. 
 
 10 California. — In re Wharton, 114 
 Cal. 367, 46 Pac. 172, 55 Am. St. Rep. 
 72. 
 
 Connecticut.-^-Fa.iTS.eld County Bar 
 V. Taylor, 60 Conn. 11, 22 Atl. 441, 13 
 L.E.A. 767; In re Westcott, 66 Conn. 
 585, 34 Atl. 505; Selleck v. Head, 77 
 Conn. 15, 58 Atl. 224; In re Durant, 
 80 Conn. 140, 10 Ann. Cas. 539, 67 Atl. 
 497. 
 
 District of Columiia. — In re 
 Adriaans, 28 App. Cas. 515. 
 
 Florida. — Zachary v. State, 53 Fla. 
 94, 43 So. 925. 
 
 Georgia. — Jones v. McCullough, 138 
 Ga. 16, 74 S. E. 694. 
 
 Kansas. — Matter of Wilson, 79 Kan. 
 674, 17 Ann. Cas. 690, 100 Pac. 635, 
 21 L.R.A.(N.S.) 517. 
 
 Kentucky. — Rice v. Com., 18 B. 
 Mon. 472. 
 
 In Turner v. Com., 2 Mete. 619, it 
 was contended that an appeal did not 
 lie from an order disbarring an at- 
 torney from practice because the 
 charges of which he was adjudged 
 guilty amounted merely to contempt 
 of court. The court said: "In reply 
 to the first point it may be said, that 
 conceding for the present the charges* 
 against appellant to be within that 
 class of offenses denominated con- 
 tempt of court, and punishable by 
 summary proceedings had in the court 
 against which they are committed; 
 
§ 897] 
 
 REVIEW OF DISBAEMENT PBOCEEDINGS. 
 
 1327 
 
 clearly appears that his rights have in some substantial way heen 
 denied him, the reviewing court will not interfere with the action 
 of the court below.^' The review which the court will make will 
 not be permitted to take as wide a range, or assume the same char- 
 acter, as where the judicial action sought to be reviewed concerns 
 the rights of parties as between themselves and into the determi- 
 nation of which the element of judicial discretion does not enter. 
 On the contrary, in a proceeding by which a court seeks to inform 
 itself of the personal fitness of one of its own officers to continue in 
 that capacity, there is every reason why an appeal Should not be 
 entertained for the purpose of exacting from the court that com- 
 pliance with technical rules, born of trial by jury, which are too 
 often suffered to hedge about a trained trier of ordinary actions, 
 quite regardless of their purpose or spirit, or their substantial 
 value under the existing conditions.*^ In some states the case is 
 tried de novo in the appellate court ; ** but in others the appellate 
 court has no jurisdiction to try the case de novo}'^ A judgment 
 
 and conceding that the power to inflict 
 punishment for such offenses is neces- 
 sarily incident, and indeed essential, 
 to the very existence of every court 
 — still it by no means follows that 
 such power is unlimited and beyond 
 control, or that abuse may not be cor- 
 rected by another tribunal having 
 general revisory power over the court 
 in which such abuse may have oc- 
 curred." 
 
 Michigan. — In re Wool, 36 Mich. 
 299. 
 
 Missouri. — In re Bowman, 7 Mo. 
 App. 569, holding that when the trial 
 was by jury and no material error 
 was committed, the appellate court 
 cannot interfere with the judgment if 
 it is in accordance with the nature of 
 the facts found. 
 
 North Dakota. — In re Crum, 7 N. D. 
 316, 75 N. W. 257. 
 
 Where numerous speciiic charges 
 are preferred in disbarment proceed- 
 
 ings, and the court finds the accused 
 guilty on several of them, and enters 
 judgment thereon, it should not be 
 reversed if any one of the findings is 
 sustained by the evidence. In re 
 Wilson, 79 Kan. 674, 17 Ann. Cas. 
 690, 100 Pao. 635, 21 L.R.A.(N.S.) 
 517. 
 
 11 In re Durant, 80 Conn. 140, 10 
 Ann. Cas. 539, 67 Atl. 497. See also 
 State V. Howard, 112 la. 256, 83 N. W. 
 975. 
 
 12 Leonard v. Gillette, 79 Conn. 664, 
 66 Atl. 502; In re Durant, 80 Conn. 
 140, 10 Ann. Cas. 539, 67 Atl. 497. 
 
 "State V. Mosher, 128 la. 82, 5 
 Ann. Cas. 984, 103 N. W. 105 ; Ex p. 
 Steinman, 95 Pa. St. 236, 40 Am. Eep. 
 637; Davis v. State, 92 Tenn. 646, 23 
 S. W. 59. 
 
 l*In re Burnette, 73 Kan. 609, 85 
 Pac. 575 ; State v. Smith, 176 Mo. 90, 
 75 S. W. 586. 
 
1328 EEVIEW OF DISBARMENT PEOCEEDIXGS. [§§ 893, 899 
 
 suspending an attorney is self-executing and is not affected by an 
 appeal and a supersedeas, except as to the collection of costs.** 
 But if the appellate court has duly granted a stay of proceedings 
 pending the appeal, the attorney is entitled meanwhile to all his 
 former privileges in court.*^ When the appellate court remands 
 the case to the lower court for trial, the accusation need not be 
 refiled in the trial court." 
 
 § 898. Writ of Error. — In some states disbarment proceed- 
 ings may be reviewed on a writ of error sued out by the attorney ; 
 but the appellate couit should not interfere with the conclusions 
 of the latter court upon the evidence, unless it is clear, in the 
 light of the rule which requires clear proof of the act and of the 
 bad motive of .the attorney, that the lower court has decided er- 
 roneously, in which case it is the duty of the appellate court to 
 interfere.'* An order of a state court suspending an attorney from 
 practice is not superseded by a writ of error from the Supreme 
 Court of the United States, as a writ of error in the United States 
 courts operates as a supersedeas only when the judgment requires 
 the issuance of process for its enforcement.*' 
 
 § 899. Certiorari. — It has been said that the proper method 
 of securing an appellate review of disbarment proceedings is by 
 certiorari in the nature of a writ of error, which is used where a 
 writ of error proper does not lie.^" On the other hand, it has been 
 
 IB Walls V. Palmer, 64 Ind. 493. State, 4 W. Va. 749; State r. Mc- 
 
 But see Heflfren v. Jayne, 39 Ind. 463, Claugherty, 33 W. Va. 250, 10 S. E. 
 
 13 Am. Eep. 281. 407. 
 
 le Bird V. Gilbert, 40 Kan. 469, 19 In State v. Shumate, 48 W. Va. 
 
 Pac. 924. 359, 37 S. E. 618, it was held that a 
 
 17 In re Burnette, 73 Kan. 609, 85 writ of error would lie for the reason 
 
 Pac. 575. that disbarment proceedings are pro- 
 is Beene v. State, 22 Ark. 149 ; ceedings for contempt, and that the 
 
 Zachary r. State, 53 Fla. 94, 43 So. constitution and statutes allow writs 
 
 ^25; Strother v. State, 1 Mo. 605; In of error in contempt proceedings. See 
 
 re H— T— , 2 Penny. (Pa.) 99; also State u. Stiles, 48 W. Va. 425, 37 
 
 State r. Stiles, 48 W. Va. 429, 37 S. E. 620. 
 
 S. E. 620. See also Smith v. State, 1 19 Tyler v. Presley, 72 Cal. 290, 13 
 
 Yerg. (Tenn.) 228; Scott v. State, 80 Pac. 856. 
 
 Tex. 321, 24 S. W. 789; Walker v. 20 Ex p. Biggs, 64 N. C. 202. 
 
§ 900] EEVIEW OF DISBAEMENT PEOCEBDINGS. 1329 
 
 held that a writ of certiorari will issue to a lower court where 
 that court is without jurisdiction or is seeking to exercise unau- 
 thorized power in disbarment proceedings ; but that the court from 
 which the writ issues will consider only jurisdictional errors ap- 
 parent on the face of the record, and will not go into the merits of 
 the controversy.^ And where the lower court has general juris- 
 diction and proceeds according to the common law, its action in 
 removing an attorney cannot be revised or corrected by an appel- 
 late court on a writ of certiorari.'' A proceeding to disbar an at- 
 torney has been held not to be an "action" within the meaning of 
 a statute providing that, whenever in any action at law the issue 
 raised on a demurrer shall be decided adversely to the demurrant, 
 the decision may be reviewed by certiorari.' 
 
 § 900. Mandamus. — If there is no method provided by stat- 
 ute for reviewing proceedings in disbarment, it seems that the 
 attorney has a right to have the proceedings reviewed on an appli- 
 cation for a writ of mandamus to compel the lower court to rein- 
 state him ; and on application for the writ the appellate court may 
 review the evidence in the disbarment proceedings and order a 
 reinstatement if it clearly appears that the inferior court com- 
 mitted error.* On such an application the appellate court will re- 
 view the proceedings in the lower court to a certain extent ; and if 
 it appears that the lower court had no jurisdiction or proceeded 
 in an unauthorized manner, the writ will lie to compel the attor- 
 ney's reinstatement. ° Ordinarily, however, an attorney who has 
 been disbarred is not entitled to have the disbarment proceedings 
 
 By this writ only the record proper ' In re Radford, 159 Mich. 91, 123 
 
 is brought up. Ex p. Biggs, 64 N. C. N W. 546, 16 Detroit Leg. N. 757. 
 
 202. * State v. Kirke, 12 Fla. 278, 95 Am. 
 
 1 State r. Smith, 176 Mo. 90, 75 S. Dec. ,S14. 
 
 W. 588. See also Fletcher I'. Dainger- 6 Hurst's Case, 1 Lev. (Eng.) 75; 
 
 field, 20 Cal. 427. Leigh's Case, 3 Mod. (Eng.) 333; Ex 
 
 When Client Not Proper Party to p. Bradley, 7 Wall. 364, 19 U. S. 
 
 Bring Certiorari. — See Baird v. Jus- (L. ed.) 214; Ex p. Robinson, 19 Wall, 
 
 tice's Court, 11 Cal. App. 439, 105 505, 22 U. S. (L. ed.) 205; Withers 
 
 Pac. 259. ^- State, 36 Ala. 252; People v. 
 
 a In re Randall, 11 Allen (Mass.) Turner, 1 Cal. 190; In re Randall, 11 
 
 472. Allen (Mass.) 473; People v. Jus- 
 Attys. at L. Vol. II.— 84. 
 
1330 
 
 EEVIEW OF DISBARMENT PEOCEEDINGS. 
 
 [§ 900 
 
 reviewed on an application to an appellate court for a writ of man- 
 damus to compel the lower court to reverse its decision and rein- 
 state him. Undoubtedly the judgment of an inferior court may 
 be reversed in a superior court having appellate jurisdiction over 
 it, and a mandate issued commanding it to carry into execution 
 the judgment of the appellate tribunal ; but the writ will not issue 
 from the higher tribunal commanding the inferior court to re- 
 verse or annul its decision, where the decision is in its nature a 
 judicial act and within the scope of its jurisdiction and discretion.* 
 
 ticea, 1 Johns Cas. (N. Y.) 181; State 
 f. Sachs, 2 Wash. 373, 26 Pac. 865. 
 See also People v. Bowling, 55 Barb. 
 (N. Y.) 197; State v. Shumate, 48 
 W. Va. 359, 37 S. E. 618. 
 
 In Walls V. Palmer, 64 Ind. 493, the 
 court said: "When an attorney has 
 been improperly suspended, or dis- 
 barred by a, judgment which is a nul- 
 lity,' the writ of mandate is a proper 
 reinedy to restore him to his rights; 
 but when he has been properly sus- 
 pended or disbarred, the writ will not 
 lie. The authorities, we believe, uni- 
 formly support the above proposi- 
 tion." 
 
 It has been held that where the 
 judgment of the inferior court is 
 clearly wrong by reason of errors in 
 the proceedings, mandamus will issue 
 to compel the inferior court to rein- 
 state the attorney, and on an applica- 
 tion for the writ of the superior court 
 will review the proceedings of the 
 lower court to this extent. People v. 
 Turner, 1 Cal. 144, 52 Am. Dec. 295 ; 
 People V. Turner, 1 Cal. 152. 
 
 Where a judge improperly excludes 
 an attorney from practice, and re- 
 fuses to enter the order on record or 
 allow an appeal, the remedy is in 
 mandamus. Ingersoll v. Howard, 1 
 Heisk. (Tenn.) 247. But the refusal 
 to listen to an attorney in a single 
 
 case cannot be regarded as disbarring 
 him from practice in that court, and 
 will not justify the issuance of a 
 mandamus to allow him to practice 
 there. People v. Dowling, 37 How. Pr. 
 (N. Y.) 394. 
 
 6 Ex p. Burr, 9 Wheat. 529, 6 U. S. 
 (L. ed.) 152; Ex p. Secombe, 19 How. 
 9. 15 U. S. (L. ed.) 565; Ex p. Wall, 
 107 U. S. 265, 8 S. Ct. 569, 27 U. S. 
 (L. ed.) 552; State v. Maxwell, 19 
 Fla. 38 ; Walls v. Palmer, 64 Ind. 493 ; 
 Ex p. Biggs, 64 N. C. 202. 
 
 In In re Randall, 11 Allen (Mass.) 
 473, the court said: "In the first 
 place, it is too clear to admit of de- 
 bate that, in a proceeding of this 
 nature, the doings of inferior courts 
 cannot be revised or corrected in 
 matters which are within their juris- 
 diction, and in regard to which they 
 are authorized to exercise a judicial 
 discretion, and to render a judgment 
 according to the conclusions of fact 
 and law at which they may arrive. If 
 a, party is aggrieved by the action of 
 a judicial tribunal in relation to such 
 matters, he must seek redress in other 
 modes than by writ of mandamus." 
 For an application of the rule to a 
 determination of the Secretary of the 
 Interior, see Garfield i'. U. S., 32 App. 
 Cas. (D. C.) 109. The attorney's pe- 
 tition for mandamus must state that 
 
§ 901] EEVIEW OF DISBARMENT PROCEEDINGS. 1331 
 
 § 901. By Accuser, Petition or State. — As the right of ap- 
 peal is usually given by statute only to a party who is aggrieved 
 or prejudiced, or whose substantial rights are affected by the de- 
 termination of the court, it is generally held that the accuser or 
 the petitioner cannot appeal from an order or judgment dismiss- 
 ing disbarment proceedings.'' It has also been held that such a 
 proceeding prosecuted by the state is a guasi-criminal case in 
 which no appeal can be taken by the state from a judgment for de- 
 fendant.' On the other hand, it has been held that a county bar 
 association, instituting a special proceeding to recall a license to 
 practice law, is aggrieved by an order dismissing the petition, and 
 may appeal therefrom.® 
 
 the court improperly removed him. Baxt. (Tenn.) 331; In re Ault, 15 
 
 In re Gephard, 1 Johns. Gas. (N. Y.) Wash. 417, 46Pac. 644. 
 
 134. 8 State v. Tunstall, 51 Tex. 81. 
 
 Tin re Thompson, (Cal.) 45 Pae. 9 Vernon County Bar Ass'n ;;. Mc- 
 
 1034; Byington v. Moore, 70 la. 206, Kibbin, 153 Wis. 350, 141 N. W. 
 
 30 N. W. 485; Brooks V. Fleming, S 283. 
 
CHAPTEE XXXIII. 
 
 EEINSTATEMENT. 
 
 § 902. In General. 
 903. Procedure. 
 
 § 902. In General. — It is generally held that a court which 
 has power to disbar an attorney has power to reinstate him on 
 good cause being shown, and in a number of instances courts have 
 exercised this power.* Statutes relating to disbarment, however, 
 
 ^England. — Rex v. Greenwood, 1 
 W. Bl. 222; Anonymous, 17 Beav. 
 475; Re Robins, 11 Jur. N. S. 504. 
 
 United States. — In re Boone, 90 
 Ped. 793. 
 
 California. — In re Treadwell, 114 
 Cal. 24, 45 Pac. 993 ; In re Burrig, 147 
 Cal. 370, 81 Pac. 1077. 
 
 Colorado. — In re Browne, 2 Colo. 
 553; People v. Essington, 32 Colo. 168, 
 75 Pac. 394. 
 
 Montana. — In re Newton, 27 Mont. 
 182, 70 Pac. 510, 982. 
 
 New Hampshire. — In re Hobbs, 75 
 N. H. 285, 73 Atl. 303. 
 
 North Dakota. — In re Simpson, 11 
 N. D. 526, 93 N. W. 918. 
 
 South Dakota. — In re Ramsey, 26 
 S. D. 352, 128 N. W. 176. 
 
 Utah. — In re Evans, 130 Pac. 217. 
 
 See also supra, § 900. 
 
 Acquittal of crime for which attor- 
 ney was disbarred, see In re H — T — , 
 2 Penny. (Pa.) 84, 14 Lane. Bar. 
 127. 
 
 Attorney Disbarred on Perjwred 
 Testimony. — After plaintiff in a per- 
 sonal injury action had recovered 
 
 judgment against a, street railway 
 company, a new trial was granted on 
 certain of plaintiff's witnesses re- 
 tracting their testimony and testify- 
 ing that they had been induced by 
 plaintiff's attorney to testify falsely, 
 whereupon the attorney was disbarred 
 on charges preferred by the company. 
 Several years thereafter it was dis- 
 covered that such retracting witnesses 
 and others, pending the motion for 
 new trial, were being paid large sums 
 of money by the railway company, and 
 that the company also paid to the 
 referee who reported the facts on the 
 motion for a new trial, a, sum far in 
 excess of the value of his services. 
 The attorney's petition for reinstate- 
 ment was referred to an official 
 referee, and the Bar Association was 
 requested to take such action as the 
 evidence warranted. Nugent v. Metro- 
 politan St. R. Co., 146 App. Div. 775, 
 131 N. Y. S. 423. After a hearing, 
 the official referee found that the at- 
 torney was not guilty of the charges 
 on which he had been disbarred, and 
 that the charges had been sustained 
 
 1332 
 
902] 
 
 EEINSTATEMEIS^T. 
 
 1333 
 
 have occasionally been construed as depriving the court of such 
 power.* On a disbarred attorney's application for reinstatement, 
 the character of the misconduct for which he was disbarred, the 
 circumstances attending his offense, his previous and subsequent 
 conduct, and his present attitude toward the court, are important 
 considerations; but the ultimate and decisive question is whether 
 the applicant is of good moral character and is a fit and proper per- 
 son to be intrusted with the privileges of the ofiice of an attorney ; * 
 in brief, whether the granting of his application would probably 
 
 by perjured testimony, and the repre- 
 sentative of the Bar Association ap- 
 pearing before the referee approved 
 his report and recommended the at- 
 torney's reinstatement ; whereupon 
 the attorney was reinstated. In re 
 Oppenheim, 155 App. Div. 889, 139 
 N. Y. S. 1053. See an editorial on 
 this case in IV. Bench and Bar, New 
 Series, p. 11. 
 
 Reinstatement on condition of good 
 behavior for two years, because con- 
 duct since disbarment had not been 
 wholly free from blame. Ex p. Davies, 
 40 Leg. Int. (Pa.) 46. 
 
 sin re Lamb, 23 Q. B. D. (Eng.) 
 477, holding that where a court made 
 an order striking from the rolls a 
 solicitor under a. statute providing 
 that a solicitor offending against it 
 "shall and may be struck off the roll, 
 and forever after be disabled from 
 practicing as an attorney or solicitor," 
 the court had no power to reinstate 
 him; In re Forbes, 2 N. W. Ter. 423, 
 holding that the supreme court of 
 the Northwest territories had no 
 power to reinstate an advocate under 
 the Legal Professions Ordinance of 
 1895. And in In re Forbes, 2 N. W. 
 Ter. 447, it was held that the court 
 could not effect the same result by 
 rescinding the order striking the advo- 
 cate from the rolls. 
 
 3 District of Columbia. — In re 
 Adriaans, 33 App. Cas. 203. 
 
 Indiana. — Ex p. Walls, 73 Ind. 95. 
 
 Montana. — In re Weed, 28 Mont. 
 2C4, 72 Pac. 653 ; In re Weed, 30 Mont. 
 456, 77 Pac. 50. 
 
 iVew yorfc.— Matter of Clark," 128 
 App. Div. 348, 112 N. Y. S. 777. See 
 also In re Harrington, 146 App. Div. 
 219, 130 N. Y. S. 920. 
 
 North Dakota. — In re Simpson, 11 
 N. D. 526, 93 N. W. 918. 
 
 Thus in Matter of Clark, 128 App. 
 Div. 348, 112 N. Y. S. 777, a disbarred 
 attorney's petition for reinstatement 
 was denied where it appeared, among 
 other things, that the offending acts 
 extended over a considerable period of 
 time, were not due to any sudden emo- 
 tion or stress of circumstances, and 
 were committed by an attorney who 
 had been at the bar for u. number of 
 years. And in Matter of Garbett, 18 
 C. B. 403, 86 E. C. L. 403, a disbarred 
 attorney was refused reinstatement 
 where it appeared that he had been 
 guilty of forgery and perjury. So in 
 Matter of Hawdone, 9 Dowl. (Eng.) 
 970, it was held that a conviction of 
 the disbarred attorney for a con- 
 spiracy to extort money by means of 
 libels was a sufficient ground for re- 
 fusing reinstatement. And in Ken- 
 nedy's Disbarment, 178 Pa. St. 232, 35 
 
1334 
 
 EEINSTATEMENT. 
 
 [§ 902 
 
 promote the administration of justice.* This question has a broad- 
 er significance than its purely personal aspect, and to persuade the 
 court to reinstate an attorney, it must appear that his reinstate- 
 ment will not be incompatible with the proper respect of the court 
 for itself, and a proper regard for the dignity of the profession.* 
 A disbarred attorney seeking reinstatement must, like a candidate 
 for admission to the bar, satisfy the court that he is a person of 
 good moral character,' and he has this burden whether or not op- 
 
 Atl. 995, the court refused to revoke 
 an order disbarring an attorney from 
 practice for embezzlement, where the 
 revocation was sought on the ground 
 that the attorney had been acquitted 
 by a criminal court of the charge of 
 embezzlement on the ground of insan- 
 ity, had been placed in an insane 
 asylum, and subsequently discharged 
 therefrom as cured. 
 
 Where it appeared from the peti- 
 tion of a disbarred attorney who 
 sought reinstatement that the larceny 
 upon conviction of which he was dis- 
 barred, was committed while he was 
 under the influence of intoxicating 
 liquor; that he had never theretofore 
 been convicted of any criminal offense; 
 that since the order of disbarment was 
 made he had become sober and had 
 lived an upright, honorable life; that 
 in the estimation of his fellow-citizens 
 in the community in which he resided, 
 and also of reputable members of the 
 bar, he was », fit person to be per- 
 mitted to practice law; and that he 
 expressed the utmost contrition for 
 his offense, the petitioner was rein- 
 stated. In re Newton, 27 Mont. 183, 
 70 Pac. 510, 982. 
 
 In another case the court, in rein- 
 stating a disbarred attorney, said that 
 in doing so they were influenced some- 
 what by the Icnowledge that the mis- 
 conduct for which the applicant was 
 
 disbarred resulted in a, measure from 
 inexperience and youthful indiscre- 
 tion as well as a radical misconception 
 of his duty as an attorney, and was 
 induced largely by local sentiment, 
 which openly encouraged his violation 
 of official duty. In re Simpson, 11 N. 
 D. 526, 93 N. W. 918. 
 
 Modifying Judgment. — A judgment 
 of disbarment for unprofessional con- 
 duct was modifled to a short suspen- 
 sion from practice, where it appeared 
 that respondent regretted his miscon- 
 duct, had otherwise borne a good 
 reputation, was generally respected, 
 and that he would probably prove to 
 be a worthy attorney. In re Ramsey, 
 26 S. D. 352, 128 N. W. 176. 
 
 4 In re Thatcher, 83 Ohio St. 246, 
 Ann. Cas. 1912A 810, 93 N. E. 895. 
 
 6 Matter of Clark, 128 App. Div. 
 348, 112 N. Y. S. 777; In re Palmer, 
 6 Ohio Cir. Dec. 179, 9 Ohio Cir. Ct. 
 55. 
 
 6 In re Weed, 28 Mont. 264, 72 Pac. 
 653; In re Palmer, 6 Ohio Cir. Dec. 
 179, 8 Ohio Cir. Dec. 508 ; In re Egan, 
 24 S. D. 301, 123 N. W. 478, 27 S. D. 
 16, 129 N. W. 365. 
 
 In Ex p. Pyke, 6 B. & S. 703, 118 E. 
 C. L. 703, wherein a disbarred attor- 
 ney sought reinstatement, the court 
 refused to reinstate him, unless he 
 could satisfy them by the testimony of 
 , trustworthy persons, especially mem- 
 
§ 902] 
 
 BEINSTATEMEIfT. 
 
 1335 
 
 position is made to his ' application.'' The mere formal proof of 
 good character required upon an ordinary application for admis- 
 sion to the bar is not sufficient. The proof must be persuasive 
 enough to overcome the court's former adverse judgment on the 
 applicant's character.' Moreover, the fact that the disbarred at- 
 torney has lived an upright life since his disbarment does not alone 
 entitle him to reinstatement.' An application for reinstatement 
 by an attorney disbarred for embezzlement will be granted where 
 reinstatement is unanimously recommended by the bar associa- 
 tion of the county, no objection is made to granting it, and the 
 court is satisfied that the attorney has been adequately punished 
 and has sincerely repented.^" While it is said that courts will not 
 ordinarily reinstate an attorney where his petition for reinstate- 
 ment follows closely upon his disbarment,'' and while his good 
 conduct during a long interval after his disbarment is properly 
 regarded as a circumstance favorable to his application,'^ yet there 
 is one remarkable case in which a court reinstated an attorney im- 
 
 bers of the profession, that his conduct 
 and character had been unimpeached 
 and unimpeachable in the meantime; 
 but afterwards dispensed with this on 
 his sliowing that he could not obtain 
 such testimony in consequence of his 
 having lived during that period in 
 complete retirement. 
 
 Where finding of facts does not 
 show affirmatively that the petitioner 
 seeking reinstatement is a man of 
 good moral character, it is equivalent 
 to an adverse finding in that respect, 
 and a finding that in his business re- 
 lations outside of his profession he has 
 been honest and upright, is not equiva- 
 lent to finding that he is a person of 
 good moral character. Ex p. Walls, 
 73 Ind. 95. 
 
 7 Ex p. Walls, 73 Ind. 95. 
 
 «In re Simpson, 11 N. D. 526, 93 
 N. W. 918. See also Matter of Clark, 
 128 App. Div. 348, 112 N. Y. S. 777. 
 
 9 Matter of Clark, 128 App. Div. 
 348, 112 ST. Y. S. 777; In re Palmer, 
 
 8 Ohio Cir. Dec. 508, 15 Ohio Cir. Ct. 
 94. 
 
 icin re Hawkins, (Del.) 87 Atl. 
 243. 
 
 "Matter of Clark, 128 App. Div. 
 348, 112 N. Y. S. 777. 
 
 12 In In re Burris, 147 Cal. 370, 81 
 Pac. 1077, a disbarred attorney was 
 reinstated, it appearing that the order 
 of disbarment was made more than ten 
 years previous to the application upon 
 a charge of professional misconduct, 
 involving no criminality, and no seri- 
 ous wrong to anyone, though inex- 
 cusable in itself ; that since that time 
 the petitioner had lived a life of 
 probity, industry and sobriety, as was 
 shown by the testimonials of many 
 judges and prominent attorneys, and 
 that the judge in whose court the 
 matter was pending out of which the 
 charge of misconduct leading to the 
 petitioner's disbarment arose recom- 
 mended the petitioner's restoration. 
 
 In In re Adriaans, 33 App. Cas. 
 
1336 
 
 REINSTATEMENT, 
 
 [§ 902 
 
 mediately after his disbarment.^' Whether the hearing is in an 
 original proceeding to remove from the bar, or upon an application 
 for reinstatement, it involves no consideration respecting the pun- 
 ishment of the respondent, since his exclusion merely annuls an 
 extraordinary privilege originally conferred in reliance upon his 
 possession of good character, and leaves him in the full enjoyment 
 of all the rights of citizenship.^* Similarly, as attorneys are dis- 
 barred not primarily as a punishment to them but as a protection 
 to the court and the community, it is not sufficient ground for 
 reinstatement that the disbarred attorney has been sufficiently pun- 
 ished for the cause for vyhich he was removed.*' ISTeither is an at- 
 torney entitled to reinstatement merely because he has been par- 
 doned of the offense for which he was disbarred. The pardon does 
 not reinstate him or require that the court do so,** for the pardon 
 does not imply innocence, or change the fact of past guilt, or re- 
 invest its recipient with a good moral character." In ]!^ew York, 
 
 (D. C. ) 203, an attorney disbarred 
 from practicing in the court of ap- 
 peals of the District of Columbia, but 
 not from practicing in the supreme 
 court in the district, was reinstated, 
 it appearing that his disbarment was 
 due to misconduct in making scandal- 
 ous charges against another attorney 
 in certain proceedings in the police 
 court attempted to be brought to the 
 Court of Appeals by writ of error; 
 that the disbarment occurred nine 
 years previously, and that he was at 
 the time of his application for rein- 
 statement still a member of the bar of 
 the supreme court of the district, in 
 good standing, with no charges of any 
 kind pending against him in any 
 court. 
 
 13 In People v. Essington, 32 Colo. 
 168, 75 Pac. 394, the court ordered the 
 disbarment of an attorney, and at the 
 same time ordered his reinstatement; 
 the court saying that, while they could 
 not exonerate him, the promptings of 
 mercy compelled them to extend to 
 
 him their judicial clemency, it ap- 
 pearing that he was admitted to the 
 bar of Pennsylvania some time prior 
 to the Civil War; that he entered the 
 Union Army and served for more than 
 four years; that he had resided in 
 Colorado for the period of fifteen 
 years, and that his conduct had been 
 exemplary except in the instances 
 charged in the information in the pro- 
 
 1* In re Thatcher, 83 Ohio St. 246, 
 Ann. Cas. 1912A 810, 93 N. E. 895. 
 See also Matter of Clark, 128 App. 
 Div. 348, 112 N. Y. S. 777. 
 
 IS In re Enright, 69 Vt. 317, 37 Atl. 
 1046. 
 
 "Matter of E , 65 How. Pr. 
 
 (N. Y.) 171. 
 
 A pardon by the President of the 
 United States of an attorney who had 
 engaged in the Rebellion does not 
 restore his standing in a state court. 
 Ex p. Quarrier, 4 W. Va. 210. 
 
 "Matter of — , 86 N. Y. 563; 
 
§ 903] REINSTATEMENT. 1337 
 
 however, a statute now provides that when an attorney has been 
 disbarred for conviction of a crime, the appellate division of the 
 supreme court shall have power to vacate or modify the order of 
 disbarment upon a reversal of the conviction or upon the granting 
 of a pardon by the President or the Governor.^' It has been held 
 that an attorney disbarred or suspended for failure to pay over 
 money to a client must, as a condition precedent to his reinstate- 
 ment, repay to his client the amount withheld, or at least as much 
 as it is in his power to repay. ^* But, on the other hand, it has been 
 said that restitution of the money embezzled will not as a rule be 
 given very much weight, as it might depend more upon the attor- 
 ney's financial ability or other favoring circumstances than upon 
 repentance or reformation.^" 
 
 § 903. Procedure. — The procedure prescribed by general 
 statutes for a new trial or rehearing does not apply to an applica- 
 tion by a disbarred attorney for reinstatement ; nor is such an ap- 
 plication restricted to procedure in the nature of a bill of review 
 or other equitable or common-law remedies, since neither the origi- 
 nal nor the appellate power of the court in respect to its statutory 
 or common-law or equity jurisdiction is exclusively invoked.'' Reg- 
 ular pleadings are not necessary, nor has the applicant a right to 
 have the questions of fact passed upon by a jury.^ The generally 
 accepted practice is for the applicant to present to the court a pe- 
 tition setting forth the facts upon which he bases his claim for re- 
 instatement ; and the petition may properly be accompanied by the 
 recommendations of judges, practitioners, and other citizens of his 
 community, which will usually have weight with the court.' If 
 
 Matter of E , 65 How. Pr. (N. Y.) l In re Evans, (Utah) 130 Pac. 2n. 
 
 171. See also supra, § 863. z Ex p. Walls, 73 Ind. 95. 
 
 18 N. Y. Judiciary Law, § 88 (2), 3 See In re Burris, 147 Cal. 370, 81 
 amended by Laws of 1912C 253. Pac. 1077; In re Adriaans, 33 App. 
 
 19 In re Poole, L. E. 4 C. P. (Eng.) Cas. (D. C.) 203; In re Newton, 27 
 350; Ex p. Browne, 2 Colo. 553; Mont. 182, 70 Pac. 510, 982; In re 
 McMath V. Maus Bros. Boot & Shoe Weed, 30 Mont. 456, 77 Pac. 50. 
 Store, 15 S. W. 879, 12 Ky. L. Rep. Such recommendations, however, 
 952. will not outweigh the graver consider- 
 
 20 In re Hawkins, (Del.) 87 Atl. ations induced by the fact that the 
 243. grounds of the disbarment were grosB 
 
1338 
 
 EEINSTATEMENT. 
 
 [§ 903 
 
 the petition is addressed to the clemency of the court, it should 
 contain an acceptance of the views of the court as to the respond- 
 ent's past conduct, and an expression of contrition and reforma- 
 tion.* The proceeding may, however, take the form of a petition 
 for a rehearing or review of the record of disbarment, especially 
 where the application is based primarily on errors in the record 
 rather than on matters subsequent to the judgment; * and in such 
 a case the judgment cannot be relied on as res judicwta,, but may 
 be vacated or modified.® The applicant must appear before the 
 court in person or by his petition subscribed by him and giving 
 his reasons for the application ; and unless he does so the petition 
 of other persons for his reinstatement will not be considered.'' But 
 
 professional misconduct involving 
 crime. In re Clarlc, 128 App. Div. 348, 
 112N. Y. S. 777. 
 
 Tlie unanimous recommendation of 
 the bar association of tlie county 
 where the applicant had lived since 
 his disbarment would be accepted as 
 a fair reflex of public sentiment, with- 
 out calling prominent and representa- 
 tive citizens as witnesses in the appli- 
 cant's behalf. In re Hawkins, (Del.) 
 87 Atl. 243. 
 
 ReneuMl of Petition. — In In re Sul- 
 livan, 185 Mass. 426, 70 N. E. 441, an 
 order of the supreme court refusing 
 to reinstate a disbarred attorney re- 
 cited that the petition for reinstate- 
 ment was "denied without prejudice 
 to his filing another petition of like 
 tenor after July 1, 1906." It was 
 held that the part of the order which 
 related to tlie filing of another peti- 
 tion was not illegal. The court said: 
 "If the order stopped with the word 
 'denied,' and if a petition founded on 
 the same averments should be here- 
 after filed, the court might treat the 
 matter as res judicata, and hold that 
 the judgment on this petition was a 
 bar. It was doubtless for the benefit 
 
 of the petitioner and to relieve him 
 from this effect of the order on a 
 petition filed after July 1, 1906, that 
 the provision as to another petition 
 was added. We do not understand the 
 provision as intended to preclude the 
 petitioner from a hearing on the 
 merits, upon a petition filed before 
 July 1, 1906, founded on facts not in- 
 cluded in the present petition. Doubt- 
 less the court could not make an order 
 which would have that effect. We con- 
 strue this part of the order as wholly 
 favorable to the petitioner, and as free 
 from legal objection." 
 
 *In re Thatcher, 83 Ohio St. 246, 
 Ann. Cas. 1912A 810, 93 N".E. 895 ; In 
 re Egan, 27 S. D. 16, 129 N. W. 365. 
 
 5 In re Evans, (Utah) 130 Pac. 217. 
 See supra, § 896 et seq. 
 
 6 In re Evans, (Utah) 130 Pac. 217. 
 See also In re Sullivan, 185 Mass. 426, 
 7 N. E. 441. 
 
 7 In re Wellcome, 25 Mont. 131, 69 
 Pac. 836; In re Pemberton, (Mont.) 
 63 Pac. 1043 ; In re Newton, 27 Mont. 
 182, 70 Pac. 510, 982. 
 
 The petition must be verified, and 
 should comply in all respects with the 
 rules applicable to the admission of 
 
§ 903] 
 
 EEINSTATEMENT. 
 
 1339 
 
 proceeding for readmission, as upon application and examination 
 in the first instance, is not the proper course.' Sometimes the 
 court will cause opposition to be made to the application,' or will 
 direct a local bar association,"* or a committee of the state bar 
 association, to intervene in the proceedings,^^ or will appoint coun- 
 sel to act in the matter as amid curioe}^ Such a practice is com- 
 mendable and salutary, for without it a proceeding for reinstate- 
 ment would be ex parte throughout and susceptible of great 
 abuse." 
 
 attorneys to practice in the first in- 
 stance. In re Newton, 27 Mont. 182, 
 70 Pac. 510, 982. 
 
 8 Matter of King, 54 Ohio St. 415, 
 43 N. E. 686, where the court said: 
 "And to make such application with- 
 out communicating to the court the 
 fact that the applicant had been dis- 
 barred, indicates a want of moral 
 sense inconsistent with the character 
 of an honorable attorney." 
 
 ' It has been held to be within the 
 power of the court to secure a petition 
 
 against the proposed readmission, and 
 to appoint certain of the petitioners 
 to resist the application. Ex p. Walls, 
 73 Ind. 95. 
 
 10 Nugent V. Metropolitan St. R. 
 Co., 146 App. Div. 775, 131 N. Y. S. 
 423. 
 
 11 See In re Simpson, 11 N. D. 526, 
 93 N. W. 918. And see In re Egan, 
 24 S. D. 301, 123 X. W. 478. 
 
 12 In re Evans, (Utah) 130 Pac. 
 218. 
 
 IS Ex p. Walla, 73 Ind. 95. 
 
INDEX. 
 
 [References are to pagea.] 
 Abandonment ^ 
 
 See Compensation of Attorney; Lien of Attorney; Kelation of Attorney 
 and Client. 
 
 Abatement of Actions — 
 
 See Actions and Proceedings. 
 
 Abatement of Nuisances — 
 
 See Attorney-General. 
 
 Ability — 
 
 See Compensation of Attorney. 
 
 Absentees — 
 
 Appointment of counsel for absentee, 147. 
 
 Abuse of Antbority — 
 
 See Disbarment. 
 
 Abnse of Court — 
 
 See Disbarment. 
 
 Abuse of Process — 
 
 See Disbarment. 
 
 Acceptance of Service — 
 
 See Process. 
 
 Accomplices — 
 
 Admissibility of evidence of accomplice in disbarment proceeding, 1310. 
 
 Accountants ~— 
 
 Liability of attorney for fees of accountant, 544. 
 
 Accounts and Accounting — 
 
 Attorney's retaining lien as attaching to account. 1036. 
 
 Partnership, see that title. 
 
 Right of client to accounting as to money collected by attorney, 593, 
 600. 
 
 Right of client to maintain action on account rendered for money col- 
 lected by attorney, 599. 
 
 1341 
 
1342 INDEX. 
 
 [References are to pages.] 
 Accrual of Lien — 
 
 See Lien of Attorney. 
 
 Accnser — 
 
 See Disbarment, 
 
 Acquittal — 
 
 See Disbarment. 
 
 Actions and Proceedings^ 
 
 Advice of counsel as defense — 
 
 Action against client for tort, 626. 
 Action against trustee, 626. 
 Bankruptcy proceeding, 628. 
 Civil action generally, 626. 
 Contempt proceeding, 629. 
 Criminal prosecution, 627. 
 Mitigation of damages, 626. 
 
 OfScer acting under fieri facias or execution, 627. 
 Question of law or fact, 627. 
 Rebutting charge of malice, 626. 
 Assignment of counsel for poor persons in civil eases, 143. 
 Attorney-General, see that title. 
 Authority of attorney — 
 
 Affidavit, making for client, 460. 
 
 Appearance in court, authority of disbarred attorney with respect 
 
 to, 414. 
 Attachment, issuing in suit for client's claim, 452. 
 Bringing and defending suits, 451. 
 Change of venue, agreement as to, 453. 
 Conducting litigation generally, 449. 
 Criminal prosecution, institution of, 453. 
 Dismissing or discontinuing suit, 458. 
 
 Exclusive control by attorney of proceedings in court, 455, 457. 
 Incurring expenses — 
 
 Attachment suit, 465. 
 
 Authority generally, 461, 465. 
 
 Fees of commissioner, 463. 
 
 Fees of detective, 464. 
 
 Fees of expert witness, 464. 
 
 Fees of referee, 463. 
 
 Fees of stenographer, 463. 
 
 Printing brief, 462. 
 
 Replevin suit, 464. 
 
 Serviee fees, 463. 
 Judgment, authority of attorney after entering, 250. 
 
INDEX. 1343 
 
 [References are to pages.] 
 ACTIONS AND PROCEEDINGS — continued. 
 Authority of attorney — continued. 
 Mandamus, procuring, 453. 
 
 Presumption as to authority in conducting litigation, 451. 
 Proof of custom with respect to authority in conducting litigation, 
 
 451. 
 Ratification by client of institution of legal proceedings, 376. 
 Retraxit, entering, 459. 
 
 Settlement of action by parties without intervention of attorney, 457. 
 Stipulations — 
 
 As to abatement or revival of action, 482. 
 That one suit shall abide decision of another, 483. 
 Champerty, see Champerty, Barratry and Maintenance. 
 Compensation, see Compensation of Attorney. 
 Disbarment proceeding as civil or criminal in nature, 1282. 
 Dismissal and nonsuit, see that title. 
 Duty and liability of attorney — 
 Conducting litigation — 
 
 Duty and liability of attorney to client in conducting litigation 
 
 generally, 563. 
 Duty and liability of attorney to client with respect to attach- 
 ments, 568. 
 Duty and liability of attorney to client with respect to conduct 
 
 of trial, 565. 
 Duty and liability of attorney to client with respect to enforce- 
 ment of judgment, 567, 568. 
 Duty and liability of attorney to client with respect to enter- 
 ing judgment, 566. 
 Duty and liability of attorney to client with respect to prepara- 
 tion and filing of pleadings, 564. 
 Duty and liability of attorney to client with respect to prosecut- 
 ing appeal or error, 569. 
 Liability of attorney for failure to take exception to erroneous 
 
 ruling, 566. 
 Liability of attorney for permitting incompetent witness to 
 
 testify, 566. 
 Liability of attorney for permitting judgment to be recovered 
 
 against client, 567. 
 Liability of attorney to client for failure to defend suit, 563. 
 Liability of attorney to client for failure to institute suit, 563. 
 Liability of attorney to client for loss occasioned by confessing 
 
 judgment, 566. 
 Liability of attorney to client for permitting judgment to be 
 vacated or opened, 567. 
 
1344 INDEX. 
 
 [Eeferences are to pages.] 
 ACTIONS AND PROCEEDINGS — continMed. 
 Duty and liability of attorney — continued. 
 Fraudulent or unauthorized act — 
 
 Right of action by client to enforce liability of attorney for 
 
 fraud, 581. 
 Eight of action by client to enforce liability of attorney for 
 
 unauthorized act, 580. 
 Running of statute of limitations against action by client 
 
 against attorney for fraud, 581. 
 Trespass against attorney for fraud, 582. 
 Money collected — . 
 
 Accounting, right of client to compel from attorney as to money 
 
 collected, 595, 600. 
 Action by client against attorney for money collected as resting 
 
 in contract, 599. 
 Action for money had and received against attorney to recover 
 
 money collected, 599. 
 Action on account rendered against attorney for money col- 
 lected, 599. 
 Assumpsit against attorney for money collected, 599. 
 Bill of particulars in action by client for money collected, 601. 
 Criminal liability of attorney to client for money collected, 600. 
 Damages recoverable from attorney in action by client for 
 
 money collected, 607. 
 Defenses generally in action by client against attorney for money 
 
 collected, 602. 
 Demand, necessity for making prior to bringing suit against 
 
 attorney for money collected, 598. 
 Form of action against attorney for money collected, 599. 
 Liability of attorney in action for money collected as question 
 
 of lavs' or fact, 602. 
 Liability of attorney in tort to client for money collected, 600. 
 Pleading in action by client against attorney for money col- 
 lected, 600. 
 Proof essential to establish liability of attorney for money 
 
 collected, 601. 
 Eight of action against attorney for money collected generally, 
 
 596. 
 Eight of attorney to establish set off or counterclaim in action 
 
 by client for money collected, 607. 
 Eunning of statute of limitations against action by client against 
 
 attorney for money collected, 604. 
 Third person, right of to sue attorney for money collected, 597. 
 
INDEX. 1345 
 
 [References are to pages.] 
 ACTIONS AND PROCEEDINGS — co*i*mMe(i. 
 Duty and liability of attorney — continued. 
 Negligence — 
 
 Assumpsit against attorney for negligence, 582. 
 
 Bill in equity against attorney for negligence, 582. 
 
 Burden of proof in action against attorney for negligence, 584. 
 
 Damages recoverable in action by client against attorney for 
 
 negligence, 589. 
 Damages recoverable in action by client against attorney for 
 
 negligence in collection of claim, 594. 
 Defenses generally in action by client against attorney for negli- 
 gence, 586. 
 Defenses generally in action by client against attorney for negli- 
 gence in collection of claim, 593. 
 Evidence admissible in action by client against attorney for 
 
 negligence, 586. 
 Evidence admissible in mitigation of damages in action by client 
 
 against attorney for negligence, 590. 
 Form of action against attorney for negligence, 582. 
 Negligence of attorney as question of law or fact, 586. 
 Pleading and proof in action by client against attorney for 
 
 negligence in collection of claim, 591. 
 Pleadings in action against attorney for negligence, 583. 
 Presumptions in action by client against attorney for negligence, 
 
 585. 
 Punitive damages as recoverable in action by client against 
 
 attorney for negligence, 590. 
 Running of statute of limitations against action by client against 
 
 attorney for negligence in collection of claim, 594. 
 Statute of limitations as defense in action by client against at- 
 torney for negligence, 588. 
 Survival of action by client against attorney for negligence, 591. 
 Summary proceeding against attorney — 
 
 Admissibility and sufficiency of evidence in summary proceed- 
 ing against attorney, 617. 
 Agent of client, riglit of to institute summary proceedings 
 
 against attorney, 617. 
 Another suit pending, right of attorney to plead as defense in 
 
 summary proceeding, 620. 
 Assertion of counterclaim as affecting right to summary pro- 
 ceeding against attorney, 612. 
 Assignment of fund, right of attorney to set up as defense in 
 
 summary proceeding, 620. 
 Claim for compensation, right of attorney to set up as defense in 
 summary proceeding, 619. 
 Attys. at L. Vol. II.— 85. 
 
134:6 ijs^DEX. 
 
 [References are to pages.] 
 ACTIONS AND PROCEEDINGS — comtiTmed. 
 Duty and liability of attorney — continued. 
 
 Summary proceeding against attorney — continued. 
 
 Defenses in summary proceeding against attorney, 619. 
 
 Disbarment, right of attorney to plead as defense in summary 
 proceeding, 621. 
 
 Enforcement of order in summary proceeding by fine, 624. 
 
 Enforcement of order in summary proceeding by imprison- 
 ment, 624. 
 
 Enforcement of order in summary proceeding by prosecution 
 for contempt, 624. 
 
 Enforcement of order in summary proceeding by removal from 
 office, 624. 
 
 Entry of judgmeiit against him, right of attorney to plead as 
 defense in summary proceeding, 620. 
 
 Executor or administrator of client, right of to institute sum- 
 mary proceeding against attorney, 617. 
 
 Existence of professional relation as condition precedent to 
 summary proceeding against attorney, 613. 
 
 Firm of attorneys, right to entertain summary proceedings 
 against on account of act of single partner, 613. 
 
 For injury caused by unauthorized act of attorney, 611. 
 
 For injury occasioned by negligence, 611. 
 
 For purpose other than to recover money collected, 610. 
 
 For recovery of money collected, 608. 
 
 Garnishment of fund, right of attorney to set up as defense 
 in summary proceeding, 620. 
 
 Giving of security, right of attorney to plead as defense in 
 summary proceeding, 621. 
 
 Hearing of summary proceeding against attorney, 618. 
 
 Issuance of attachment to enforce order in summary proceeding, 
 623. 
 
 Legal remedy, right of attorney to plead as defense in summary 
 proceedings, 621. 
 
 Method of instituting summary proceeding against attorney, 
 615. 
 
 Nature and enforcement of order in summary proceeding gener- 
 ally, 622. 
 
 Necessity that merit and good faith be shown in defending sum- 
 mary proceeding, 621. 
 
 Parties to summary proceeding against attorney, 617. 
 
 Presumption as to finding of court in summary proceeding 
 against attorney, 619. 
 
 Reference in summary proceeding against attorney, right to and 
 effect of, 618. 
 
INDEX. 1347 
 
 [References are to pages.] 
 ACTIOXS AND PROCEEDINGS — coniimied. 
 Duty and liability of attorney — continued. 
 
 Summary proceeding against attorney — continued. 
 
 Resignation of office as attorney as defense to summary pro- 
 ceeding, 621. 
 Review, of summary proceeding against attorney, 619. 
 Set-off, right of attorney to plead as defense in summary pro- 
 ceeding, 620. 
 Statute of limitations, right of attorney to plead as defense in 
 
 summary proceeding, 620. 
 To enforce delivery of documents, 610. 
 To prevent entry of judgment against client, 611. 
 Under what circumstances court will entertain jurisdiction of 
 summary proceeding against attorney, 611. 
 Judgments, see that title. 
 Lien of attorney — 
 
 Accrual of attorney's lien on client's cause of action, 1014. 
 Amount of recovery in independent action to enforce attorney's lien, 
 
 1085. 
 Defenses in independent action to enforce attorney's lien, 1084. 
 Enforcement of attorney's lien by independent action at law, 1079. 
 Enforcement of attorney's lien by independent action in equity, 1081. 
 Evidence in independent action to enforce attorney's lien, 1083. 
 Extent of attorney's lien on client's cause of action, 1012. 
 Parties to independent action to enforce attorney's lien, 1082. 
 Pleading in independent action to enforce attorney's lien, 1083. 
 Procedure in prosecuting original suit to judgment for enforcement 
 
 of attorney's lien, 1076. 
 Eight of attorney to enforce lien by prosecuting original suit to 
 
 judgment, 1074. 
 Right of attorney to lien as affected by assignment of cause of action, 
 
 1052. 
 Right of attorney to lien on cause of action for personal tort, 1014. 
 Eight of attorney to lien on client's cause of action, 1009. 
 Right of attorney to lien on judgment in special proceeding, 1032. 
 Right to lien for services rendered in special proceeding, 992. 
 Validity of statute giving attorney lien on cause of action, 1010. 
 When permission to prosecute original suit to judgment in order to 
 enforce lien will be denied, 1078. 
 Malicious prosecution, see that title. 
 Privileged nature of communication to attorney when judicial proceeding 
 
 is not commenced or contemplated, 190. 
 Privilege of attorney as witness when he is party to transaction, 219. 
 Privilege of attorney with respect to suit, 114. 
 Prosecuting attorneys, see that title. 
 
1348 INDEX. 
 
 [References are to pages.] 
 ACTIONS AND PROCEEDINGS — co»*mMed. 
 Substitution of attorney after judgment, 257. 
 Unlicensed person, status of proceedings by, 109. 
 Witness, right of attorney who is party to act as. 323. 
 
 Additional Counsel — 
 
 See Associate Counsel. 
 
 Address of Client — 
 
 See Privileged Communications. 
 
 Adjoining Iiandowners — 
 
 Authority of attorney to contract with adjoining landowner on behalf 
 of client, 357. 
 
 Adjournment — 
 
 Power oi attorney to stipulate with respect to adjournment, 482. 
 
 Administrative Board — 
 
 See Lien of Attorney. 
 
 Administrators — 
 
 See Executors and Administrators. 
 
 Admiralty — 
 
 Proctor in admiralty, authority of to compromise, 387. 
 
 Admissions and Declarations — 
 
 Authority of attorney to compromise, proof of by his own declarations, 
 
 407. 
 Clerk of attorney, admissions by, 347. 
 Compensation, admissions or declarations as admissible in evidence in 
 
 action by attorney for, 885. 
 Correspondence between attorney and client, admission contained in as 
 
 privileged, 204. 
 During employment, necessity that admissions by attorney be made, 346. 
 During trial, authority of attorney to make admission of fact, 487. 
 Formality and distinctness as prerequisite to admissibility of admissions 
 
 by attorney, 343. 
 General rule as to admission by attorney as evidence against client, 340. 
 Implied power of attorney to make admission on behalf of client, 476. 
 Partner, admission of as binding on firm, 323. 
 Relief from admission by attorney inade under mistake of facts, right 
 
 of client to, 486. 
 Scope of attorney's authority, necessity that admissions by attorney be 
 
 within, 342. 
 Subsequent trial, competency of ad'mission of attorney at, 347. 
 
INDEX. 1349 
 
 [References are to pages.] 
 Admission to Practice — 
 
 Agent, right of person not admitted to bar to practice as, 28. 
 
 Age of applicant as determining eligibiltiy to admission to bar, 35. 
 
 Appointment to office, admission of applicant to bar as, 17. 
 
 Attorney in fact, statute requiring pleading to be filed by attorney as 
 
 including, 29. 
 Character as qualification for admission to bar, 41. 
 Citizenship as necessary qualification to admission to bar, 36. 
 Compensation for services as depending on admission and good standing, 
 
 25. 
 Compensation for services contracted for before admission, right to, 26. 
 Compensation, right to for services rendered in court to which attorney 
 
 is not admitted, 27. 
 Compensation, right to of unlicensed person for services not necessarily 
 
 rendered by attorney, 27. 
 Contract, privilege of practicing law as, 23. 
 Corporation, right of to be admitted to bar, 44. 
 Court not of record, right of unlicensed person to practice in, 30. 
 Director of bank, right of to appear as its attorney, 28. 
 Disbarment, see that title. 
 
 Duelling oath as prerequisite to admission to bar, 82. 
 Educational qualifications for admission to bar, statutes prescribing, 58. 
 Education as qualification for admission to bar, 56. 
 Enrollment or registration on admission to bar, 83. 
 Evidence against applicant for admission to bar, sufficiency of, 92. 
 Examination for admission to practice — 
 
 Application for admission subsequent to exam-ination, necessity of, 
 77. 
 
 Board of examiners generally, 66, 69. 
 
 Board of examiners, rules of, 70. 
 
 Character of examination, 73. 
 
 Columbia law school, right of graduate to practice without exam- 
 ination, 71. 
 
 Hastings college of law, right of graduate of to practice without 
 examination, 71. 
 
 Law school graduates, necessity of examination of, 70. 
 
 Kecessity of examination generally, 64. 
 
 Percentage required to pass examination, 77. 
 
 Personal presence of applicant at examination, necessity of, 77. 
 
 Requirements subsequent to examination, 77. 
 
 Subjects of examination, 73. 
 
 Validity of statute dispensing with examination, 65. 
 
 Validity of statute requiring examination of person already ad- 
 mitted, 66. 
 
 Who conducts examination, 66. 
 Fitness for practicing law generally, 22. 
 
1350 INDEX. 
 
 [References are to pages.] 
 ADMISSION TO PRACTICE— continued. 
 
 Fraud in procuring admission to practice as ground for disbarment, 1249. 
 
 Judicial or legislative function, admission to practice as, 31. 
 
 Law office, study in as affecting qualification for admission to bar, 60. 
 
 Law school, study in as affecting qualifications for admission to bar, 
 59. 
 
 Legislature, right of to prescribe qualification for admission to bar in 
 Indiana, 59. 
 
 Legislature, right of to regulate admission to practice, 33. 
 
 Mental qualifications for admission to practice, Indiana statute providing 
 for examination as to, 59. 
 
 New Jersey, admission to practice in by letters patent, 32. 
 
 Oath of office as prerequisite to admission to bar, 79. 
 
 Oath of office before admission to bar, validity of statute regulating, 80. 
 
 Oath of office on admission to bar, violation of, 81. 
 
 Objections to admission of applicant to bar, who may interpose, 90. 
 
 Order admitting applicant to practice, conclusiveness of, 84. 
 
 Other jurisdictions, admission to attorneys of to bar, So. 
 
 Particular business or case, admission to bar for, 24. 
 
 Partnership, right of to compensation where one partner is unlicensed to 
 practice, 26. 
 
 Party prosecuting or defending for himself, 27. 
 
 Privilege of appearing as counsel at bar of another jurisdiction, 24. 
 
 "Property," privilege of practicing law as, 23. 
 
 Qualifications required for admission to practice generally, 23. 
 
 Race as qualification for admission to bar, 40. 
 
 Residence as qualification for admission to bar, 38. 
 
 Right to practice law as inherent right, 22. 
 
 Solicitor in Canada, right of unlicensed person to "practice"' as, 28. 
 
 "Special admission," practicing at bar of foreign court by, 24. 
 
 Statutory provisions, forbidding unlicensed practice, 30. 
 
 Test oath as requisite to admission to bar, 83. 
 
 Validity of statute permitting person not admitted as attorney to prac- 
 tice law, 28. 
 
 Women, eligibility to practice law, 45. 
 
 Women, legal arguments for and against admission to bar, 50. 
 
 Women, nonlegal arguments for and against admission of to bar, 52. 
 
 Adverse Employment — 
 
 See Dealings between Attorney and Client. 
 
 Adverse Interests — 
 
 See Dealings between Attorney and Client; Disbarment. 
 
 Adverse Parties — 
 
 See Compensation. 
 
INDEX. 1351 
 
 [References are to pages.] 
 Advertising — 
 
 See Compensation; Disbarment. 
 
 Advice of Connsel — 
 
 As defense — 
 
 Bankruptcy proceeding, 628. 
 Civil action generally, 626. 
 Contempt proceeding, 629. 
 Criminal prosecution, 627. 
 Malicious prosecution — 
 
 Absence of malice or existence of probable cause, advice of 
 
 counsel as establisliing, 636. 
 Complete statement of facts to counsel as necessary to establish 
 
 defense, 639. 
 Detective, advice of as defense, 650. 
 Diligence to discover facts, necessity of exercising in order to 
 
 establish defense of, 642. 
 General rule as to advice of counsel as defense, 631. 
 Good faith, necessity of in seeking and acting on advice of 
 
 counsel, 638. 
 Justice of the peace, advice of as defense, 650. 
 Magistrate, advice of as defense, 650. 
 Ministerial ofHcer, advice of as defense, 650. 
 Nature of advice received as affecting defense, 645. 
 Person other than attorney, advice of as defense, 649. 
 Police o£5cer, advice of as defense, 650. 
 Prosecuting attorney, advice of as defense, 649. 
 Qualification of attorney consulted as affecting defense, 647. 
 Reason of rule as to advice of counsel as defense, 635. 
 Mitigation of damages, 626. 
 
 Officer acting under fieri facias or execution, 627. 
 Question of law or fact, 627. 
 Rebutting charge of malice, 626. 
 Tort, action against client for, 626. 
 Trustee, action against, 626. 
 Compensation, see Compensation of Attorney. 
 Dealings between Attorney and Client, see that title. 
 Erroneous advice, liability of attorney for damage resulting from, 556. 
 Failure to advise client, liability of attorney for, 557. 
 
 Advocates — 
 
 Greece, advocates of, 1. 
 Roman advocates, 2. 
 
 Affidavits — 
 
 Admissibility of affidavits in disbarment proceeding, 1310. 
 
1352 INDEX. 
 
 [References are to pages.] 
 AFFIDAVITS — contimied. 
 
 Admissibility of ex parte affidavits in summary proceeding against at- 
 torney, 618. 
 Appearance, see that title. 
 
 Authority of attorney to make affidavit for client, 460. 
 Presentation of false affidavit as ground for disbarment, 1239. 
 
 Age — 
 
 See Admission to Practice. 
 
 Agency — 
 
 Acting as attorney, right of agent employed to negotiate loans with re- 
 spect to, 312. 
 
 Attorney compared with agent, 14. 
 
 Attorney in fact as agent, 19. 
 
 Attorney in fact, statute requiring pleading to be filed by attorney as 
 including, 29. 
 
 Communication made to agent of attorney as privileged, 172. 
 
 Communication made to agent of client as privileged, 177. 
 
 Communication made to attorney acting as agent as privileged, 189. 
 
 Court not of record, right of unlicensed person to practice in, 30. 
 
 Notice of attorney's charging lien, sufficiency of when given to person's 
 agent, 1001. 
 
 Practising as agent, right of person not admitted to bar with respect 
 to, 28. 
 
 Principles applicable to agency as controlling relation of attorney and 
 client, 353. 
 
 Summary proceeding against attorney, right of agent of client to in- 
 stitute, 617. 
 
 Agreements — 
 
 See Contracts. 
 
 Aiding Poor Persons — 
 
 See Champerty, Barratry, and Maintenance. 
 
 Alias Execution — 
 
 See Executions. 
 
 Aliens — 
 
 See Citizenship. 
 
 Alimony — 
 
 Evidence of employment by one spouse in action by attorney against 
 other spouse for compensation for services in matrimonial action 
 generally, 909. 
 
 Eight of attorney to compensation contracted to be paid for out of 
 alimony, 788. 
 
 Eight of attorney to lien on judgment or decree for alimony, 1034. 
 
INDEX. 1353 
 
 [References are to pages.] 
 
 Allegations ^ 
 
 See Pleading. 
 
 Alteration of instruments — 
 
 See Disbarment. 
 
 Amendments ^ 
 
 Power of attorney to stipulate for amendment of pleading, 481. 
 
 American Colonies — 
 
 Attorneys in American colonies, 6. 
 
 Amicus Curiae — 
 
 Appointment of, 148. 
 Compensation of, 148. 
 Intervention of, 147. 
 Meaning of term, 147. 
 Powers and functions of, 150. 
 Status of, 148. 
 
 Amount in Controversy^ 
 
 See Compensation. 
 
 Amount of Compensation — 
 
 See Compensation. 
 
 Annulment of Marriage ^ 
 
 Right of attorney to compensation under contract designed to facilitate 
 annulment of marriage, 758. 
 
 Another Suit Fending ^ 
 
 See Summary Proceedings. 
 
 Ansnrer — 
 
 See Pleading. 
 
 Anti-duelling Oatb — 
 
 See Oaths. 
 
 Apology — 
 
 See Disbarment. 
 
 Appeal and Error — 
 
 Admission to practice, right of court to review order granting, 84. 
 Authority of attorney — 
 
 To control proceedings on appeal or writ of error, 511. 
 
 To prosecute appeal or writ of error in name of client, 509, 510. 
 
 To stipulate with respect to appeals, 481. 
 
 To waive client's right to prosecute appeal or writ of error, 512. 
 
1354 INDEX. 
 
 [References are to pages.] 
 APPEAL AND ERROR — continued. 
 Bond — 
 
 Authority of attorney to execute for client, 355. 
 Right of attorney to qualify as surety on, 128. 
 Compensation, review of judgment in action by attorney for, 964. 
 Disbarment — 
 
 Accuser or petitioner, right of to appeal from judgment in disbar- 
 ment proceeding, 1331. 
 Appeal, review of disbarment proceeding by, 1323. 
 Bar association, right of to appeal from judgment in disbarment 
 
 proceeding, 1331. 
 Certiorari, review of disbarment proceeding by, 1328. 
 Effect of disbarment or suspension of attorney on his brief in pend- 
 ing appeal, 1175. 
 Mandamus, review of disbarment proceeding by, 1329. 
 Original jurisdiction of appellate court to disbar attorney, 1177. 
 Review of disbarment proceedings generally, 1323. 
 State, right of to appeal from judgment in disbarment proceeding, 
 
 1331. 
 Writ of error, review of disbarment proceeding by, 1328. 
 Duty and liability of attorney to client with respect to prosecuting ap- 
 peal or error, 569. 
 Lien of attorney — 
 
 Appeal from order in proceeding to enforce, 1070. 
 As attaching to printed record on appeal, 1037. 
 Effect on, of reversal of judgment on appeal, 1033. 
 Enforcement of, against sureties on appeal bond, 1086. 
 Enforcement of, by appeal and in appellate court, 1060, 1073. 
 Settlement of litigation by client pending appeal as affecting, 1046. 
 Objection to authority of attorney to appear, sufficiency of when made 
 on appeal, 431. 
 
 Appearance — 
 
 Admission to practice, see that title. 
 Authority of attorney to appear generally, 413. 
 Coparties, authority of attorney to appear for, 420. 
 Cotenants, authority of attorney to appear for, 420. 
 Director of bank, right of to appear as its attorney, 28. 
 Disbarred attorney, authority of to appear, 414. 
 Documents, see that title. 
 
 Entering appearance of attorney, manner of, 422. 
 Evidence of authority to appear — 
 
 Attorney as competent witness to prove his authority to appear, 434. 
 
 Authority of attorney to appear as question of law or fact, 435. 
 
 Burden of proof of authority of attorney to appear, 432. 
 
 Requiring attorney to prove authority to appear, 435. 
 
 Sufficiency of evidence of authority of attorney to appear, 432. 
 
INDEX, 1355 
 
 [References are to pages.] 
 APPEARANCE — contimied. 
 
 Nominal party, authority of attorney to appear for, 421. 
 Objection to appearance — 
 
 Adverse party, right of to object to appearance of attorney, 424. 
 
 Answer, objection to appearance of attorney by, 427. 
 
 Collateral attack on authority of attorney to appear, 427. 
 
 Court, right of to question authority of attorney to appear, 425. 
 
 Demurrer, objection to appearance of attorney by, 427. 
 
 Fraud, necessity that objection of authority of attorney to appear 
 
 raise suspicion of, 429. 
 Immediate determination by court of authority of attorney to ap- 
 pear, necessity for, 428. 
 Motion, objection to appearance of attorney by, 426. 
 Petition, objection to appearance by attorney by, 426. 
 Plea, objection to appearance of attorney by, 427. 
 Right to object to authority of attorney to appear, generally, 423. 
 Stranger to suit, right of to question attorney's authority to appear, 
 
 425. 
 Sufficiency of objection — 
 
 Objection made after final j'ldgment, 431. 
 
 Objection made at time of trial, 431. 
 
 Objection made before answer filed, 431. 
 
 Objection made before plea filed, 431. 
 
 Objection made on appeal, 431. 
 
 Objection made on information and belief, 427, 430. 
 
 Sufficiency of objection generally, 428. 
 Time to object to appearance by attorney, 430. 
 Waiver of right to, object to unauthorized appearance by attorney, 
 
 438. 
 Who may object to appearance by attorney, 424. 
 Presumption of authority to appear — 
 
 Action by one person to use of another, 419. 
 Bankruptcy proceeding, appearance in, 419. 
 Conclusiveness of presumption, 420. 
 Corporation, appearance for, 419. 
 Infant, appearance for, 419. 
 Judgment, appearance after, 418. 
 Municipality, appearance for, 419. 
 Nonresident, appearance for, 419. 
 Partnership, appearance for, 420. 
 Person who is not attorney, 420. 
 Pleading, presumption from filing of, 419. 
 Presumption generally, 415, 420. 
 Public officer, appearance for, 419. 
 Several parties, appearance for, 419, 420. 
 State, appearance for, 419. 
 
1356 INDEX. 
 
 [References are to pages.] 
 APPEARANCE — contirmed. 
 
 Privileged communications, see that title. 
 Ratification of appearance by client, 376. 
 Unauthorized appearance — 
 
 Effect of unauthorized appearance generally, 437. 
 
 Effect of unauthorized appearance resulting in entry of judgment, 
 
 439. 
 Liability of attorney to client for unauthorized appearance, 517. 
 Validity of domestic judgment procured by virtue of unauthorized 
 
 appearance, 442. 
 Validity of foreign judgment procured by virtue of unauthorized 
 appearance, 445. 
 Written authority to appear, necessity that attorney have, 421. 
 
 Appointment of Connsel — 
 
 See Assignment of Counsel. 
 
 Appointment to Office — 
 
 Admission of applicant to bar as appointment to office, 17. 
 
 Apportionment of Fees — 
 
 See Compensation. 
 
 Appropriation — 
 
 Right of attorney to lien on money appropriated by legislature, 1020. 
 
 Arbitration and Airard — 
 
 Authority of attorney to submit cause of action to arbitration, 488. 
 Delegation by attorney of authority to submit ease to arbitration, 372. 
 Right of attorney to lien on award of arbitrator, 1032. 
 
 Army and Navy — 
 
 Right of attorney to compensation under contract to procure discharge 
 of drafted man, 753. 
 
 Arrest — 
 
 Authority of attorney to discharge person from arrest, 411. 
 
 False imprisonment, see that title. 
 
 Immunity of attorney from arrest, 10. 
 
 Privilege of attorney from, arrest on civil process, 115. 
 
 Assignment for Benefit of Creditors — 
 
 Authority of attorney to bind clients by assenting to assignment for 
 benefit of creditors, 354. 
 
 Eight of attorney to compensation for services rendered to assignee for 
 benefit of creditors, 721. 
 
 Waiver of privilege of communication by successor of assignee for bene- 
 fit of creditors, 222. 
 
INDEX. 1357 
 
 [References are to pagea.] 
 Assignment of Connsel — 
 
 Appointment of counsel for absentee, 147. 
 Assignment of counsel for poor person in civil case, 143. 
 Assignment of counsel for poor person in criminal case, 144. 
 Validity of statute requiring counsel to give services without compensa- 
 tion, 145. 
 
 Assignments — 
 
 Assignee of client, enforcement of attorney's lien against, 1062. 
 Between client and attorney — 
 
 Enforceability of equitable assignment of transfer to attorney of 
 
 interest in subject-matter of litigation, 734. 
 Presumption as to assignment of client's property to attorney, 281. 
 Talidity of assignment to attorney of subject matter of litigation, 
 286. 
 Cause of action — 
 
 Eight of attorney to compensation as affected by assignment of cause 
 
 of action, 766. 
 Right of attorney to lien as affected by assignment of cause of 
 action, 1052. 
 Champerty, see Champerty, Barratry, and Maintenance. 
 Claim of client, authority of attorney to assign, 359. 
 Compensation contract between attorney and client as assignment, 981. 
 Compensation contract of attorney; assignment of, 727. 
 Insolvent savings bank, right of commissioner who examines claims 
 
 against to act as attorney for assignee, 311. 
 Judgment — ■ 
 
 Assignment of judgment to counsel as affecting right of setoff, 1056. 
 Authority of attorney to accept assignment of judgment in payment 
 
 of client's claim, 393. 
 Authority of attorney to assign client's judgment, 497. 
 Enforcement of attorney's lien by order on assignee of judgment 
 
 to pay over fund, 1072. 
 Ratiiioation by client of assignment of judgment, 376. 
 Right of attorney to lien as affected by assignment of judgment, 
 1051. 
 Lieo of attorney — 
 
 Right of assignee to enforce attorney's lien, 1061. 
 Right to assign charging lien, 975, 1005. 
 Right to assign retaining lien, 972. 
 Mortage, ratification by client of assignment of by attorney, 376. 
 Summary proceeding, right of attorney to set up assignment of fund 
 as defense in, 620. 
 
 Assistants — 
 
 Associate Counsel, see that title. 
 
135S INDEX. 
 
 [Reierences are to pages.] 
 ASSISTANTS — continued. 
 
 Attorney-General, see that title. 
 
 Liability of attorney for act of assistant, 522. 
 
 Prosecuting Attorneys, see that title. 
 
 Associate Counsel — 
 
 Communications between associate counsel as privileged, 177. 
 Compensation — 
 
 Agreement between attorney of record and his associate with respect 
 
 to fees of latter as binding on client, 772. 
 Amount of compensation to which associate counsel is entitled as 
 
 affected by contract with attorney first employed, 772. 
 Amount of compensation to which attorney is entitled as affected 
 
 by amount paid to associate counsel, 772. 
 Evidence of authorized employment in action by associate counsel 
 
 for compensation, 899. 
 Payment of fees of other counsel as defense to action by attorney 
 
 for compensation, 956. 
 Proof of performance by associated attorney or partner as svifRcient 
 
 evidence of performance in action by attorney for compensation, 
 
 914. 
 Ratification of unauthorized employment of associate counsel as 
 
 entitling attorney to compensation therefor, 711. 
 Right of attorney to compensation for associate counsel employed 
 
 by authority of client, 712. 
 Right of attorney to compensation for services of associate counsel, 
 
 708. 
 Correspondence between associate counsel as privilege, 203. 
 Employment — 
 
 Authority of attorney to employ associate counsel generally, 358, 
 
 709. 
 Authority of attorney to employ associate counsel at client's expense, 
 
 371. 
 Proof of consent by client to employment of associate counsel, 373. 
 Ratification by client of employment of associate counsel, 374, 376, 
 
 379. 
 Right of attorney to employ associate counsel at his own expense, 
 
 374. 
 Lien — 
 
 Enforcement of attorney's lien against associate counsel, 1062. 
 Eight of associate or assistant counsel to charging lien, 983. 
 
 Assumpsit — 
 
 Right of client to maintain assumpsit against attorney for money col- 
 lected, 599. 
 Right of client to maintain assumpsit against attorney for negligence, 
 
 582. 
 
INDEX. 1359 
 
 [References are to pages.] 
 Attachment ^ 
 
 Authority of attorney — 
 
 To enforce judgment by moving for order for sale of attached prop- 
 erty, 505. 
 
 To execute bond in attachment suit, 355. 
 
 To incur expense in attachment suit, 465. 
 
 To issue attacliracnt in suit for client's claim, 452. 
 
 To release attached property, 412. 
 
 To stipulate for dissolution of attachment, 482. 
 Costs, enforcement by attachment of liability of attorney for, 545. 
 Counsel fees, allowance of in action on attachment bond, 856. 
 Disbarment, see that title. 
 
 Duty and liability of attorney to client with respect to attachments, 568. 
 Liability of attorney to third person for illegal attachment of property, 
 
 526. 
 Liability of client for unlawful attachment by attorney, 532. 
 Lien of attorney — 
 
 Priority of attorney's lien as against attachment proceeding, 986. 
 
 Right of attorney to lien on attached funds, 1019. 
 Summary proceeding, issuance of attachment to enforce order in, 623. 
 
 Attorney — 
 
 Signification of word "attorney," 11. 
 
 Attorney at liavr — 
 
 "Attorney at law" and "counselor" distinguished, 17. 
 Meaning of term, 11. 
 
 Attorney-General — 
 
 Canada, office of attorney-general in, 1133. 
 
 England, office of attorney-general in, 1131. 
 
 Origin of office of attorney-general, 1131. 
 
 Privileged nature of correspondence between prosecuting attorney and 
 
 attorney-general, 203. 
 State attorney -general — ' 
 
 Actions which attorney-general may prosecute on behalf of state, 1153. 
 
 Appearance for state in litigation, right and duty with respect to, 
 1149. 
 
 Appointment, election, qualifications, etc., 1142. 
 
 Assistants, appointment of, 1148. 
 
 Common-law powers, 1143. 
 
 Compensation of, 1149. 
 
 Compromising litigation, power with respect to, 1162. 
 
 Consent of court, necessity of before attorney-general can act on 
 behalf of state, 1158. 
 
 Constitutional and statutory powers and duties generally, 1145. 
 
1360 INDEX. 
 
 [References are to pages.] 
 ATTORNEY-GENERAL — continued. 
 State attorney -general — continued. 
 
 Corporation, authority witli respect to suit by or against, 1157. 
 
 Costs, liability for, 1160. 
 
 Criminal action, authority to conduct and control, 1162-1164. 
 
 Disbarment proceeding, right to institute, 1283. 
 
 Discretion in matters of public concern, 1146. 
 
 Dismissal of suit prosecuted in public interest, power with respect 
 to, 1161. 
 
 Expenses, right to incur, 1160. 
 
 Grand jury, power to appear before, 1150. 
 
 Injunction against attorney-general to prevent enforcement of un- 
 constitutional statute, 1147. 
 
 Mandamus to compel attorney-general to act or decide, 1146-1147 
 
 Municipal or quasi municipal corporation, authority with respect 
 to suit by or against, 1156. 
 
 Opinion, authority and effect of, 1148. 
 
 Opinion, duty to furnish, 1148. 
 
 Pleading and procedure in action wherein attorney-general acts in 
 behalf of state, 1159. 
 
 Protection of public interests, power to bring action for, 1151. 
 
 Public nuisance, power to abate, 1154. 
 
 Public trust or charity, power and duty with respect to enforce- 
 ment of, 1154. 
 
 Quo warranto, discretion with respect to instituting, 1146. 
 
 Request of governor or legislature, necessity of before attorney- 
 general can act on behalf of state, 1158. 
 
 Sole control of state litigation as vested in attorney-general, 1160. 
 
 Special counsel, power to employ, 1147. 
 
 State officer, authority with respect to suit by or against, 1155. 
 
 Suit in name of state, sole power to bring, 1146. 
 
 Taxes, power with respect to collection and assessment of, 1155. 
 
 Termination of authority to appear for state, 1151. 
 United States attorney-general — 
 
 As counsel for government, 1136. 
 
 As exercising superintendence of district attorneys, marshals, and 
 clerks, 1135. 
 
 Authority and effect of opinion of attorney-general, 1140. 
 
 Compensation of special counsel, 1142. 
 
 Employment of special counsel, 1141. 
 
 Form and requisites of question put to attorney-general in request- 
 ing opinion, 1340. 
 
 Matters with respect to which attorney-general is required to give 
 opinion, 1138. 
 
 Powers and duties generally, 1134. 
 
INDEX. 1361 
 
 [References are to pages.] 
 ATTORNEY-GENERAL — continued. 
 
 United States attorney-general — continued. 
 Statute providing for oflSce, 1133. 
 Substitutes and assistants, 1141. 
 To whom attorney-general is required to give opinion, 1138. 
 
 Attorney in Fact — 
 
 Communication to attorney in fact as privileged, 189. 
 Meaning of term, 19. 
 
 Statute requiring pleading to be filed by attorney as including attorney 
 in fact, 29. 
 
 Attorney of Record^ 
 
 Meaning of term, 19. 
 
 Authority of Attorney — 
 
 Acceptance of service of process and papers — 
 
 Collateral attack on acceptance of service of original process by 
 
 attorney, 466. 
 Existence of relation of attorney and client, sufficiency of service on 
 
 attorney as depending on, 476. 
 Express authority of attorney to accept service of original process, 
 
 467. 
 Form of attorneys, sufficiency of service of process on one of, 470. 
 Implied authority of attorney to accept or waive service of original 
 
 process, 465. 
 Injunction against prosecuting action, bill for as properly served 
 
 on attorney for respondent, 469. 
 Joint parties, authority of attorney for one of several to accept 
 
 service of notice for another, 469. 
 Joint parties, sufficiency of service on attorney for one of several, 
 
 469. 
 Leaving process at office, sufficiency of service on attorney by, 470. 
 Mail, sufficiency of service of process on attorney by, 473. 
 Manner of service of process on attorney, 470. 
 Presumption as to authority of attorney to accept service of original 
 
 process, 466. 
 Ratification of unauthorized acceptance of service of original process 
 
 by attorney, 466. 
 Subsequent notice on paper, authority of attorney to accept service 
 
 of after original process has been served, 468. 
 Accomplishment of purpose of employment, authority of attorney after, 
 
 248. 
 Acknowledgment of debt by attorney as binding client, 353. 
 Adjoining landowner, authority of attorney to contract with on behalf of 
 client, 357. 
 Attys. at L. Vol. II.— 86. 
 
1362 INDEX. 
 
 [References are to pages.] 
 AUTHOEITY OF AITOICNEY — contimied. 
 
 Admission as evidence, see the title Admissions and Declarations. 
 Admission by attorney made under mistake of facts, right of client to 
 
 relief from, 486. 
 Admission, implied power of attorney to make on behalf of client, 476. 
 Affidavit, authority of attorney to make for client, 460. 
 Appeal and error — 
 
 Appeal bond, authority of attorney to execute for client, 355. 
 Controlling proceedings on appeal or writ of error, authority of 
 
 attorney with respect to, 511. 
 Presumption as to authority of attorney to prosecute appeal or error, 
 
 510. 
 Prosecuting appeal or writ of error in name of client, authority of 
 
 attorney with respect to, 50j. 
 Waiver of client's right to prosecute appeal or writ of error, author- 
 ity of attorney to make, 512. 
 Appearance — 
 
 After judgment, presumption as to authority of attorney to appear, 
 
 418. 
 Authority of attorney to appear generally, 413. 
 Bankruptcy proceeding, presumption of authority of attorney to 
 
 appear in, 419. 
 Burden of proof o' authority of attorney to appear, 432. 
 Competent witness to prove his authority to appear, attorney as, 434. 
 Conclusiveness of presumption of authority of attorney to appear, 
 
 420. 
 Coparties, authority of attorney to appear for, 420. 
 Corporation, presumption as to authority of attorney to appear for, 
 
 419. 
 Cotenants, authority of attorney to appear for, 420. 
 Domestic judgment procured by virtue of unauthorized appearance 
 
 of attorney, validity of, 442. 
 Evidence of authority of attorney to appear, sufficiency of, 432. 
 Foreign judgment procured by virtue of unauthorized appearance 
 
 of attorney, validity of, 445. 
 Infant, presumption as to authority of attorney to appear for, 419. 
 Manner of entering appearance of attorney, 422. 
 Municipality, presumption of authority of attorney to appear for, 
 
 419. 
 Nominal parties, authority of attorney to appear for, 421. 
 Nonresident, presumption of authority of attorney to appear for, 419. 
 Objection to appearance — 
 
 Adverse party, right of to object to appearance of attorney, 424. 
 
 Answer filed, sufficiency of objection of attorney to appear made 
 before, 431. 
 
INDEX. 1363 
 
 [References are to pages.] 
 AUTHORITY OP ATTORNEY — coretire«ed. 
 Appearance — continued. 
 
 Objection to appearance — contvnued. 
 
 Answer, objection by to appearance of attorney, 427. 
 Appeal, sufficiency of objection to authority of attorney to ap- 
 pear made on, 431. 
 Collateral attack on authority of attorney to appear, 427. 
 Court, right of to question authority of attorney to appear, 425. 
 Demurrer, objection by to appearance of attorney, 427. 
 Final judgment, sufficiency of objection to authority of attorney 
 
 to appear made after, 431. 
 Fraud, necessity that objection of authority of attorney to ap- 
 pear raise suspicion of, 429. 
 Immediate determination by court of authority of attorney to 
 
 appear, necessity for, 428. 
 Information and belief, sufficiency of objection to appearance by 
 
 attorney made on, 427, 430. 
 Manner of presenting objection to appearance by attorney, 425. 
 Motion, objection by to appearance of attorney, 426. 
 Party for whom attorney appears, right of to object to appear- 
 ance, 424. 
 Petition, objection by to appearance by attorney, 426. 
 Plea filed, sufficiency of objection to authority of attorney to 
 
 appear made before, 431. 
 Plea, objection by to appearance of attorney, 427. 
 Right to object to authority of attorney to appear, 423. 
 Stranger to suit, right of to question attorney's authority to 
 
 appear, 425. 
 Sufficiency of objection to authority of attorney to appear gen- 
 erally, 428. 
 Time of trial, sufficiency of objection to authority of attorney 
 
 to appear made at, 431. 
 Time to object to appearance by attorney, 430. 
 Who may object to appearance by attorney, 424. 
 Partnership, presumption as to authority of attorney who appears 
 
 for defendant in action against, 420. 
 Person not attorney, presumption of authority of to appear, 420. 
 Pleading, presumption of authority of attorney to appear from filing 
 
 of, 419. 
 Presumption as to authority of attorney to appear generally, 415, 
 
 423. 
 Public officer, presumption of authority of attorney to appear for, 
 
 419. 
 Question of law or fact, authority of attorney to appear as, 435. 
 Requiring attorney to prove authority to appear, 435. 
 
1364 INDEX. 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — comiimted. 
 Appearance — continued. 
 
 Several persons, presumption as to authority of attorney to appear 
 
 for, .419, 420. 
 State, presumption of authority of attorney to appear for, 419. 
 Unauthorized appearance by attorney, effect of generally, 437. 
 Unauthorized appearance by attorney resulting in entry of judgment, 
 
 effect of, 439. 
 Use of another, presumption of authority of attorney to appear in 
 
 action by one person to, 419. 
 Waiver of right to object to unauthorized appearance by attorney, 
 
 438. 
 Written authority to appear, necessity that attorney have, 421. 
 Arbitration, authority of attorney to submit cause of action to, 488. 
 Assignment for benefit of creditors, right of attorney to bind client by 
 
 assenting to, 354. 
 Associate counsel — 
 
 Employment of associate counsel, power of attorney with respect to, 
 
 358, 371, 709. 
 Proof of consent by client to employment of associate counsel, 373. 
 Ratification of unauthorized employment of associate counsel as 
 
 entitling attorney to compensation therefor, 711. 
 Sight of attorney to compensation for associate counsel employed 
 
 by authority of client, 712. 
 Right of attorney to employ associate counsel at his own expense, 374. 
 Attachment, authority of attornsy to issue in suit for client's claim, 452. 
 Attachment bond, authority of attorney to execute, 355. 
 Attachment suit, authority of attorney to incur expense in, 465. 
 Bankrupt, authority of attorney to resist discharge of, 354. 
 Bond, authority of attorney to execute for client generally, 355. 
 Brief, authority of attorney to bind client by contract for printing, 462. 
 Bringing and defending suits, authority of attorney with respect to, 451. 
 Broker's commissions, authority of attorney to bind client to pay, 358. 
 Burden of proof of authority of attorney generally, 359. 
 Certiorari, authority of attorney for plaintiff in, to execute bond, 356. 
 Change of venue, authority of attorney to make agreement with respect 
 
 to, 453. 
 Collection and receipt of money — 
 
 Application of payment, authority of attorney to make as between 
 
 several creditors, 362. 
 Claims held for collection, authority of attorney to receive payment, 
 
 363. 
 Criminal proceedings against debtor, authority of attorney to resort 
 
 to, 370. 
 Demand of payment, authority of attorney to make, 367. 
 
INDEX. 1365 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — co»«i»«ed. 
 
 Collection and receipt of money — continued. 
 
 Demand of payment by attorney as demand by client, 367. 
 
 Dower, authority of attorney to sign demand of, 367. 
 
 Execuiion, authority of attorney to receive payment of, 362. 
 
 Extension of time of payment, authority of attorney witli respect to, 
 367. 
 
 Judgment, authority of attorney to receive payment of, 362. 
 
 Manner of payment to attorney, 363. 
 
 Mortgage, authority of attorney to collect as evidenced by his em- 
 ployment to draw papers, 366. 
 
 Payment made to attorney after termination of relation as binding 
 client, 370. 
 
 Payment to attorney as payment to client, 362. 
 
 Possession of evidence of indebtedness as creating presumption of 
 authority to receive payment, 364. 
 
 Ratification of unauthorized receipt of money by attorney, 370. 
 
 Receipt of money for client generally, authority of attorney with 
 respect to, 361. 
 
 Receipt of money outside scope of employment, authority of attorney 
 with respect to, 368. 
 
 Revocation of authority of attorney to receive payment for client, 363. 
 
 Tender to attorney as tender to client, 362. 
 
 Termination of authority of attorney to receive money for client, 363. 
 Commissioner, authority of attorney to bind client for payment of fees 
 
 of, 463. 
 Compromise — 
 
 Acceptance of less than amount due in satisfaction of client's claim, 
 authority of attorney with respect to, 395. 
 
 Acceptance of payment by attorney otherwise than in money, author- 
 ity to compromise by, 390. 
 
 Acceptance of payment by attorney otherwise than in money, effect 
 of as extinguishing client's claim, 394. 
 
 Assignment of judgment, authority of attorney to accept in payment 
 of client's claim, 393. 
 
 Authorized compromise, operation and extent of authority of attor- 
 ney with respect to, 404. 
 
 Authorized compromise, sufficiency of authority of attorney with 
 respect to, 405. 
 
 Bill of sale, authority to aeeept in payment of client's claim, 393. 
 
 Bond, authority of attorney to accept in payment of client's claim, 
 393. 
 
 Burden of proof of authority of attorney to accept less than amount 
 due on client's claim, 397. 
 
 Burden of proof of authority of attorney to accept payment in 
 something other than money, 395. 
 
1366 INDEX. 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — cojitinwed. 
 Compromise — contitmed. 
 
 Burden of proof of authority of attorney to compromise, 407. 
 Canada, rule in as to authority of attorney to compromise, 401. 
 Certificate of indebtedness, authority of attorney to. accept in pay- 
 ment of client's claim, 393. 
 Check, authority of attorney to accept in payment of client's claim, 
 
 393. 
 Claims, authority of attorney to compromise, 387. 
 Collateral security, authority of attorney to take for claim in his 
 
 hands, 394. 
 County warrant, authority of attorney to accept in payment of 
 
 client's claim, 393. 
 Draft, authority of attorney to accept in payment of client's claim, 
 
 393. 
 Ejectment suit, authority of attorney to compromise, 387. 
 Emergency, authority of attorney to compromise in case of, 390. 
 England, rule in as to authority of attorney to compromise, 402. 
 Foreclosure of mortgage, authority of attorney to compromise in 
 
 case of, 387. 
 Fraudulent receipt of attorney for amount due client as binding 
 
 on latter, 397. 
 Ceneral rule as to authority of attorney to compromise cause of 
 
 action, 382. 
 Judgment, correction of clerical error in reducing amount recover- 
 able, authority of attorney to assent to, 397. 
 Judgment in favor of client, authority of attorney to accept less 
 
 than amount due on, 396, 499. 
 Land or other property, authority of attorney to accept in payment 
 
 of client's claim, 392. 
 Legal tender, authority of attorney to accept payment in other than, 
 
 392. 
 Massachusetts, rule in as to authority of attorney to compromise, 
 
 388. 
 Mortgage, authority of attorney to accept in payment of client's 
 
 claim, 393. 
 Nevf Hampshire, rule in as to authority of attorney to compromise, 
 
 389. 
 Nonresident, authority of attorney to compromise where client is, 388. 
 Note, authority of attorney to accept in payment of client's claim, 
 
 393. 
 Note, authority of attorney to compromise in collection of, 387. 
 Presumption of authority of attorney to compromise, 406. 
 Proctor in admiralty, authority of to compromise, 387. 
 Proof of authority of attorney to accept payment in something other 
 
 than money, 395. 
 
INDEX. 1367 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — continued. 
 Compromise — continued. 
 
 Proof of authority of attorney to compromise by his own declarations, 
 
 407. 
 Prosecuting attorney, authority of to compromise, 387. 
 Question for jury, authority of attorney to compromise as question 
 
 for jury, 407. 
 Ratification of act of attorney in accepting less than amount due, 397. 
 Ratification of attorney's acceptance of payment other than in money, 
 
 395. 
 Revocation of express authority to compromise, 405. 
 South Carolina, rule in as to authority of attorney to compromise, 
 
 389. 
 Substitution of other indebtedness in lieu of client's demand, author- 
 ity of attorney with respect to, 393. 
 Trustee, authority of attorney for to compromise, 387. 
 Unauthorized compromise by attorney, effect of on rights of parties, 
 
 398, 399. 
 Unauthorized compromise by attorney, setting aside, 400. 
 Conducting litigation generally, authority of attorney with respect to, 449. 
 Confession of judgment, see infra, this title. Judgments. 
 Continuance, see infra, this title, Trial. 
 
 Contracts for client, authority of attorney to make or alter, 356. 
 Conveyance of land, authority of attorney to contract for on behalf of 
 
 client, 357. 
 Criminal prosecution, authority of attorney to institute, 453. 
 Custom with respect to authority of attorney in conducting litigation, 
 
 proof of, 451. 
 Dealings beween attorney and client, see that title. 
 Death of client, authority of attorney after, 244. 
 Debtor in jail, authority of attorney to bind client to support, 358. 
 Deed of trust for client, authority of attorney to accept, 354. 
 Delegation of authority — 
 
 Arbitration, delegation by attorney of authority to submit client's 
 
 case to, 372. 
 Claim, delegation by attorney of authority to collect, 372. 
 Clerks and employees, delegation by attorney of authority to, 373. 
 Delegation of authority of attorney generally, 370. 
 Judgment, delegation by attorney of authority to receive payment of, 
 
 372. 
 Local counsel, delegation by attorney of authority to, 373. 
 Payment, right of attorney to delegate authority to accept, 362. 
 Demand aifecting rights of client, authority of attorney to make, 475. 
 Detective, authority of attorney to employ, 464. 
 Disbarment, see that title. 
 
1368 INDEX. « 
 
 [Eeferences are to pages.] 
 AUTHORITY OF ATTORNEY— oontinued. 
 
 Dismissing or discontinuing suit, authority of attorney with respect to, 
 
 458. 
 Disposition of client's property — 
 
 Bond taken in payment of client's judgment, authority of attorney to 
 
 transfer, 360. 
 Choses or other property of client, authority of attorney to dispose 
 
 of; 359. 
 Claim of client, authority of attorney to sell or assign, 359. 
 Debts of client, authority of attorney to apply property of client 
 
 to payment of, 361. 
 Money of client, authority of attorney to distribute, 361. 
 Money of client, authority of attorney to pay third person, 360. 
 Note placed in hands for collection, authority of attorney with re- 
 spect to, 359. 
 Sale of client's property, authority of attorney to authorize, 360. 
 Employees of attorney, authority of attorney to bind client to pay, 358. 
 Equitable conversion, authority of attorney to make agreement which 
 
 will effect, 357. 
 Exclusive control by attorney of proceedings in court, 455, 457. 
 Executions, see infra, this title. Judgments. 
 Expense in litigation, authority of attorney to incur, 461, 465. 
 Expert witness, authority of attorney to employ, 464. 
 General rule as to authority of attorney, 351. 
 Implied authority of attorney, general rule as to, 351. 
 Indemnity bond, authority of attorney to execute, 355. 
 Indemnity contract, authority of attorney to bind client by, 357. 
 Injunction bond, authority of attorney to execute, 355. 
 Inspection of public records, right of attorney to make, 352. 
 Judgments — 
 
 Agreement in connection with enforcement of judgment, authority 
 
 of attorney to enter into, 507. 
 Alias execution, authority of attorney to enforce judgment by is- 
 suing, 505. 
 Assignment of client's judgment, authority of attorney to make, 497. 
 Body execution, authority of attorney to enforce judgment by issu- 
 ing, 505. 
 Bringing suit on judgment in another jurisdiction, authority of 
 
 attorney with respect to, 505. 
 Compromise of judgment, authority of attorney to make, 396, 499. 
 Confession of judgment, authority of attorney to make for client, 
 
 492, 493. 
 Correction of error in judgment, authority of attorney to agree to, 
 
 499. 
 Entry of judgment or decree, authority of attorney to consent to, 
 494, 495. 
 
INDEX. 1369 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — co»«i»wed. 
 Judgments — continued. 
 
 Execution on judgment, authority of attorney to issue, 502. 
 Fraudulent debtor's act, authority of attorney to enforce judgment 
 
 by instituting proceedings under, 505. 
 Indemnity to secure levy under execution, authority of attorney to 
 
 give, 503, 505. 
 Instruction by attorney as to enforcement of execution as binding 
 
 client, 505. 
 Opening of judgment by default, authority of attorney to consent to, 
 
 498. 
 Payment of judgment, authority of attorney to receive, 500. 
 Payment of money collected on execution, authority of attorney to 
 
 receive, 502. 
 Preserving and enforcing judgment, authority of attorney to employ 
 
 all lawful means for, 504. 
 Receiver, authority of attorney to enforce judgment by applying for 
 
 appointment of, 505. 
 Release of judgment, authority of attorney with respect to, 499. 
 Remittitur, authority of attorney to enter, 498. 
 Revival of judgment, authority of attorney to sue for, 505. 
 Sale of attached property, authority of attorney to enforce judgment 
 
 by moving for order for, 505. 
 Sale of client's judgment, authority of attorney to make, 497. 
 Satisfaction — 
 
 Authority of attorney to satisfy judgment in favor of client, 500. 
 Ratification by client of unauthorized satisfaction of judgment by 
 
 attorney, 502. 
 Ratification of authority of attorney to satisfy judgment by 
 death of client, 501. 
 Staying execution issued in favor of client, authority of attorney 
 
 with respect to, 508. 
 Supplementary proceedings, authority of attorney to enforce judg- 
 ment by instituting, 505. 
 Suspending proceedings on judgment, authority of attorney to make 
 
 agreement for, 358. 
 Vacation of judgment entered in favor of client, authority of attor- 
 ney with respect to, 498. 
 Winding up proceedings against corporation, authority of attorney 
 to enforce judgment by presenting petition in, 505. 
 Leases, authority of attorney with respect to, 358. 
 Mandamus, authority of attorney to procure, 453. 
 Money, see supra, this title, Collection and Receipt of Money. 
 Mortgage, authority of attorney to bind client to pay balance due on, 358. 
 New trial, authority of attorney to agree to, 498. 
 
1370 INDEX. 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — oowtinaed. 
 
 Notice affecting rights of client, presumption as to autliority of attorney 
 
 to give, 475. 
 Papers, see supra, this title, Acceptance of Service of Process and Papers. 
 Plea of guilty, authority of attorney to enter for client, 494. 
 Presumption as to authority of attorney generally, 354. 
 Presumption as to authority of attorney in conducting litigation, 451. 
 Prison, authority of attorney to consult client in, 352. 
 Process, see supra, this title. Acceptance of Service of Process and Papers. 
 Property of client, see supra, this title, Disposition of Client's Property. 
 Ratification of unauthorized acts — 
 
 Acceptance of service, ratification of by client, 376. 
 
 Adopting or accepting benefit of attorney's acts, ratification by, 378. 
 
 Agreement with third person, ratification of by client, 376. 
 
 Appearance by attorney, ratification of by client, 376. 
 
 Assignment of judgment, ratification of by client, 376. 
 
 Assignment of mortgage, ratification of by client, 376. 
 
 Associate counsel, ratification by client of employment of, 374, 376, 
 379. 
 
 Burden of establishing ratification of act of attorney, 359, 377. 
 
 Execution of bond by attorney, ratification of, 356. 
 
 Failure to object, ratification of act of attorney by, 379. 
 
 Institution of legal proceedings, ratification of by client, 376. 
 
 Laches as ratification of act of attorney, 380. 
 
 Partial ratification by client of authorized acts of attorney, 376. 
 
 Payment to attorney, ratification of by client, 376. 
 
 Promise, ratification of by client, 376. 
 
 Question of law or fact, ratification of act of attorney as, 377. 
 
 Release, ratification of by client, 376. 
 
 Satisfaction of judgment, ratification of by client, 376. 
 
 Unauthorized acts of attorney, ratification of generally, 358, 374. 
 Receipt of money, see supra, this title. Collection and Receipt of Money. 
 Referee, authority of attorney to bind client for payment of fees of, 463. 
 Reference, authority of attorney to agree to, 488. 
 Refunding money paid to client, authority of attorney to bind client 
 
 with respect to, 358. 
 Relation of attorney and client, see that title. 
 Release — 
 
 Arrest, authority of attorney to discharge person from, 411. 
 
 Attached property, authority of attorney to release, 412. 
 
 Claim of client, authority of attorney to release, 408. 
 
 Contract with another person to assume liability, authority of at- 
 torney to enter into for client, 409. 
 
 Correction of clerical error, authority of attorney with respect to, 411. 
 
 Errors on record, authority of attorney to release, 411. 
 
INDEX. 1371 
 
 [References are to pageg.J 
 AUTHORITY OF ATTOTCNEY — continued. 
 Release — contimted. 
 
 Execution lien, authority of attorney to release, 409. 
 
 Imprisonment, authority of attorney to release debtor from, 411. 
 
 Indorser, authority of attorney to release, 409. 
 
 Interest on bond, authority of attorney to release, 409. 
 
 Joint debtor, authority of attorney to release, 409. 
 
 Judgment, authority of attorney to release, 409, 410. 
 
 Lien, authority of attorney to release, 410. 
 
 Person liable to client, authority of attorney to execute release to 
 in order to render him competent witness, 411. 
 
 Ratification of release by attorney, 411. 
 
 Security for payment of client's debt, authority of attorney to re- 
 lease, 410. 
 
 Surety, authority of attorney to release, 410. 
 Remittitur, see supra, this title. Judgments. 
 
 Renewal of indebtedness, authority of attorney to bind client with re- 
 spect to, 358. 
 Replevin bond, authority of attorney to execute. 
 Replevin suit, authority of attorney to incur expense in, 464. 
 Retraxit, authority of attorney to enter, 459. 
 Revocation of authority of attorney, 237. 
 Satisfying claim for damages, authority of corporation attorney with 
 
 respect to, 353. 
 Scope of authority, general rule as to, 351, 352. 
 
 Secret limitations on power of attorney as binding third persons, 354 
 Separation agreement, authority of attorney to bind client by, 358. 
 Service fees, authority of attorney to bind client for payment of, 463. 
 Service of process, see supra, this title. Acceptance of Service of Process 
 
 and Papers. 
 Settlement of action by parties without intervention of attorney, 457. 
 Statute of limitations, authority of attorney to talce ease out of, 358. 
 Stenographer, authority of attorney to employ in course of litigation, 463. 
 Stipulations — • 
 
 Abatement a revival of action, power of attorney to stipulate as to, 
 482. 
 
 Abiding by decision in another suit, authority of attorney to stipu- 
 late with respect to, 483. 
 
 Adjournment, power of attorney to stipulate with respect to, 482. 
 
 Amendment of pleading, power of attorney to stipulate for, 481. 
 
 Appeal, authority of attorney to stipulate with respect to, 481. 
 
 Attachment, power of attorney to stipulate for dissolution of, 482. 
 
 Enforceability of stipulation made in open court, 485. 
 Evidence, power of attorney to stipulate as to matters of, 482. 
 Extension of time for decision of case by judge, authority of attor- 
 ney to stipulate for, 482. 
 
1372 INDEX. 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — continued. 
 Stipulations — continued. 
 
 Extension of time for service of pleading, power of attorney to stipu- 
 late for, 481. 
 
 Extension of time to file pleading, authority of attorney to stipulate 
 for, 481. 
 
 Filing pleading, power of attorney to enter into stipulation waiving 
 right with respect to, 482. 
 
 Informalities and irregularities, power of attorney to waive by 
 stipulation, 482. 
 
 Inquisition, power of attorney to waive by stipulation, 482. 
 
 Joint parties, authority of attorney for one of several to stipulate 
 for another party, 469. 
 
 Mistake of fact, right of client to relief from stipulation made by 
 attorney under, 486. 
 
 Objections to process or service, power of attorney to waive by stipu- 
 lation, 482. 
 
 Power of attorney to enter into stipulations generally, 478. 
 
 Procedure, power of attorney to enter into stipulation with respect to 
 
 matters of, 481. 
 . Service of process or pleadings, power of attorney to enter into 
 stipulation waiving, 482. 
 
 Technical advantages, power of attorney to waive by stipulation, 482. 
 
 Waiver of client's rights, power of attorney to make by stipulation, 
 484. 
 
 Withdrawal of pleading by opposite party, power of attorney to stipu- 
 late for, 481. 
 
 Writing, necessity that stipulation by attorney be in, 485. 
 Trial — 
 
 Absence of client, authority of attorney to agree to trial for mis- 
 demeanor in, 488. 
 
 Admission of fact, authority of attorney during trial to make, 487. 
 
 Conduct of trial, authority of attorney with respect to, 486. 
 
 Continuance, authority of attorney to agree to, 488. 
 
 Dismissal of client's demand for second trial in action of ejectment, 
 authority of attorney with respect to, 488. 
 
 Joinder of parties, authority of attorney to agree to, 488. 
 
 Judgment on pleadings, authority of attorney to agree to rendition of, 
 488. 
 
 Jury trial, authority of attorney to waive, 487. 
 
 Objections to admission of evidence, authority of attorney during 
 trial to waive, 487. 
 
 Opinion of certain courts shall be conclusive, authority of attorney 
 to agree that, 488. 
 
INDEX. 1373 
 
 [References are to pages.] 
 AUTHORITY OF ATTORNEY — co«*4««ed. 
 Trial — continued. 
 
 Trial on merits without pleadings, authority of attorney to agree to, 
 
 488. 
 Withdrawal of juror, authority of attorney to agree to, 488. 
 Trust, authority of attorney to bind client to create, 358. 
 Trust deed, authority of attorney to bind client by stipulations in, 358. 
 Trust deed, authority of attorney to bind client to create, 358. 
 Unauthorized acta, see supra, this title, Ratification of Unauthorized Acts. 
 
 A\rard — 
 
 See Arbitration and Award. 
 
 Bad Faith — 
 
 See Fraud. 
 
 Bail — 
 
 Enforcement of attorney's lien against surety on bail bond, 1086. 
 
 Bailments — 
 
 Misappropriation of funds received by attorney as bailee as ground for 
 disbarment, 1222. 
 
 Bank Books — 
 
 Attorney's retaining lien as attaching to bank book, 1036. 
 
 Bankruptcy — 
 
 Advice of counsel as defense in bankruptcy proceedings, 628. 
 Attorney for bankrupt, right of to act for creditor or trustee, 313. 
 Authority of attorney to resist discharge of bankrupt, 354. 
 Compensation of attorney — 
 
 Allowance of attorney's fees in bankruptcy proceeding, 817. 
 
 Compensation of attorney for creditor in bankruptcy proceeding, 820. 
 
 Compensation of attorney for trustee or receiver in bankruptcy, 819. 
 
 Fees of attorney as entitled to priority under bankruptcy act, 824. 
 
 Necessity that allowance to attorney for services in bankruptcy case 
 be reasonable, 823. 
 
 Re-examination of fees paid to attorney in contemplation of bank- 
 ruptcy, 825. 
 
 Eight of attorney for bankrupt to reasonable compensation for 
 services, 817. 
 Disbarment, violation of provisions of bankruptcy law as ground for 
 
 disbarment, 1266. 
 Presumption of authority of attorney to appear in bankruptcy proceed- 
 ings, 419. 
 Referee in bankruptcy, prohibition of from practicing in bankruptcy 
 
 proceeding, 112. 
 
1374 INDEX. 
 
 [References are to pages.] 
 Banks — 
 
 Director- of bank, right of to appear as its attorney, 28, 112. 
 
 Insolvent savings bank, right of commissioner who examines claims 
 
 against to act as attorney for assignee, 311. 
 Liability of attorney for loss of client's money deposited in bank, 572, 573. 
 
 Bar Associations — 
 
 Right and duty of bar association to institute disbarment proceedings, 
 1284. 
 
 Right of bar association to appeal from judgment in disbarment pro- 
 ceeding, 1331. 
 
 Bar Examinations — 
 
 Application for admission subsequent to examination, necessity of, 77. 
 
 Boards of examiners of applicants for admission to bar, 66, 69. 
 
 Board of examiners, rules of, 70. 
 
 Character of examination of applicants for admission to bar, 73. 
 
 Columbia law school, right of graduate to practice without examination, 
 71. 
 
 Hastings college of law, right of graduate of to practice without exam- 
 ination, 71. 
 
 Law school graduates, necessity of examination of, 70. 
 
 Necessity of examination of applicants for admission to bar, 64. 
 
 Percentage required to pass examination for admission to bar, 77. 
 
 Personal presence of applicant at examination for admission to bar, 
 necessity of, 77. 
 
 Requirements subsequent to examination for admission to bar, 77. 
 
 Subjects of examination of applicants for admission to bar, 73. 
 
 Validity of statute dispensing with examination of applicants for ad- 
 mission to bar, 65. 
 
 Validity of statute requiring examination of person already admitted 
 to bar, 66. 
 
 Who conducts bar examinations, 66. 
 
 Barratry — 
 
 See Champerty, Barratry, and Maintenance. 
 
 Barristers — 
 
 Barristers and solicitors in England, 5. 
 Honorarium of barrister, 8. 
 
 Bastardy — 
 
 Conviction of bastardy as ground for disbarment, 1269. 
 Right of attorney to lien for services rendered in bastardy proceeding, 992. 
 Right of attorney to lien on judgment recovered in bastardy proceeding, 
 1032. 
 
INDEX. 1375 
 
 [References are to pages.] 
 Bawdy Honse — 
 
 Keeping bawdy-house as ground for disbarment, 1266. 
 
 Bencliers — 
 
 Benchers as governing body of inns of court, 5. 
 
 Beneficial Interests — 
 
 See Costs. 
 
 Beneficial Services — 
 
 See Compensation. 
 
 Benefit to Client — 
 
 See Compensation. 
 
 Bill of Privilege — 
 
 Bill of privilege in early times, 9. 
 
 Bill Rendered — 
 
 See Compensation. 
 
 Bills and Notes — 
 
 Authority of attorney to accept note in payment of client's claim, 393. 
 
 Authority of attorney to collect note not in his possession, 365. 
 
 Authority of attorney to compromise in collecting note, 387. 
 
 Authority of attorney to release liability of indorser, 409. 
 
 Authority of attorney with respect to note placed in his hands for col- 
 lection, 359. 
 
 Binding effect of stipulation in note fixing fee of attorney for collection, 
 776. 
 
 Lien of attorney as. attaching to note, 1036. 
 
 Eight of partner to bind copartners by execution or indorsement of com- 
 mercial paper, 323. 
 
 Bills of Particulars — 
 
 Right of attorney to bill of particulars in action by client for money 
 collected, 601. 
 
 Bills of Sale — 
 
 Authority of attorney to accept bill of sale in payment of client's claim, 
 393. 
 
 Blackmail — 
 
 Blackmail as ground for disbarment, 1266. 
 
 Body Execntions — 
 
 See Executions. 
 
 Bonds — 
 
 Appeal of error, see that title. 
 
1376 INDEX. 
 
 [References are to pages.] 
 BONDS — continued. 
 
 Attachment, see that title. 
 
 Authority of attorney to accept bond in payment of client's claim, 393. 
 
 Authority of attorney to execute sealed bond, 356. 
 
 Authority of attorney to release interest on bond, 409. 
 
 Authority of attorney to transfer bond taken in payment of client's 
 
 judgment, 360. 
 Bail, see that title. 
 Injunctions, see that title. 
 Lien of attorney as attaching to bond, 1036. 
 
 Parol authority of attorney to execute bond in behalf of client, 356. 
 Replevin, see that title. 
 
 Right of attorney to qualify as surety, 124. 
 
 Validity and effect of bond given by attorney in violation of statute or 
 rule of court, 128. 
 
 Breacli of Duty to Client — 
 
 See Liability of Attorney. 
 
 Bribery — 
 
 Bribery as cause for disbarment, 1266. 
 
 Briefs — 
 
 Appeal and Error, see that title. 
 
 Authority of attorney to bind client by contract for printed brief, 462. 
 
 Disbarment, see that title. 
 
 Liability of attorney for cost of printing brief, 544. 
 
 Brokers — 
 
 Authority of attorney to bind client to pay broker's commissions, 358. 
 
 Burden of Proof — 
 
 Assignment or conveyance to attorney, burden of proof as to fairness of, 
 
 284. 
 Authority of attorney generally, burden of proof of, 359. 
 Authority of attorney to accept less than amount due on client's claim, 
 
 burden of proof of, 397. 
 Authority of attorney to accept payment in something other than money, 
 
 burden of proof of, 395. 
 Authority of attorney to appear, burden of proof of, 432. 
 Authority of attorney to compromise, burden of proof of, 407. 
 Compensation, burden of proof in action by attorney for, 719, 882, 918. 
 Fairness of transaction occurring after termination of relation, burden of 
 
 proof as to, 276. 
 Fairness of transaction with client, burden of proof as to, 272. 
 Fraud, burden of proof in action by client against attorney for, 581. 
 Gift by client to attorney, burden of proof as to validity of, 288. 
 Negligence, burden of proof in action against attorney for, 584. 
 Ratification of act of attorney, burden of proof of, 359, 377. 
 
INDEX. 1377 
 
 [References are to pages.] 
 Canada — 
 
 Admission to practice, see that title. 
 
 Attorney-general in Canada, 1133. 
 
 Compensation, rule in Canada as to right of attorney to, 699, 
 
 Compromise, see that title. 
 
 Disbarment of attorneys in Canada, 1182. 
 
 Privileges and Exemptions, see that title. 
 
 Retainer, rule in Canada as to right of attorney to, 708. 
 
 Care ^ 
 
 See Liability of Attorney. 
 
 Cause of Action — 
 
 See Actions and Proceedings. 
 
 Certificates of Indebtedness — 
 
 Authority of attorney to accept certificate of indebtedness in payment 
 of client's claim, 393. 
 
 Certiorari ^ 
 
 Authority of attorney for plaintiff in certiorari to execute bond, 356. 
 Review of disbarment proceeding by certiorari, 1328. 
 
 Champerty, Barratry, and Maintenance — 
 
 Adoption in United States of English laws against champerty, barratry, 
 and maintenance, 661. 
 
 Aiding litigation of indigent person as champertous, 674. 
 
 Assignment of part of cause of action, taking to secure fee as cham- 
 perty, 665. 
 
 Attorney not practicing as within statute prohibiting attorneys from 
 buying claims for suit, 13. 
 
 Barratry defined, 654. 
 
 Champerty defined, 653. 
 
 Contingent fee, taking case on as champerty, 664. 
 
 Contract for part of recovery as distinguished from creation of indebt- 
 edness for fees, 667. 
 
 Costs or expenses of action, agreement by attorney to pay as champerty, 
 669. 
 
 Defense to action, champertous agreement as, 684. 
 
 Defense to action, rule in Wisconsin with respect to champertous agree- 
 ment as, 686. 
 
 Distinction between champerty, barratry, and maintenance distinguished, 
 656. 
 
 Final judgment, contract entered into after as champertous, 673. 
 
 Government, contract for compensation to be paid out of recovery against 
 as champertous, 673. 
 
 Maintenance defined, 655. 
 
 Attornevs at Law Vol. XI — 87. 
 
1378 INDEX. 
 
 * 
 
 [References are to pages.] 
 CHAMPERTY, BARRATRY, AND MAINTENANCE — comtinwed. 
 
 New York statutory provisions as to purchase of litigious rights, 680. 
 
 Origin of prohibitory measures against champerty, barratry, and mainte- 
 nance, 657. 
 
 Purchase of litigious rights as champerty, 676. 
 
 Purpose of laws against champerty, barratry, and maintenance, 659. 
 
 Quantum meruit, recovery on for service rendered under champertous 
 contract, 675. 
 
 Receiving interest in land in controversy as champerty, 666. 
 
 Settlement by client, contract forbidding as champertous, 672. 
 
 Changed Vieir of Ijaw — 
 
 See Disbarment. 
 
 Change of Venue — 
 
 See Venue. 
 
 Character — 
 
 Admission to bar, character as qualification for, 40. 
 
 Evidence against applicant for admission to bar, sufficiency of, 92. 
 
 Charges — 
 
 See Disbarment. 
 
 Charging Lien — 
 
 See Lien of Attorney. 
 
 Charities — 
 
 See Attorney-General. 
 
 Checks — 
 
 Authority of attorney to accept check in payment of client's claim, 393. 
 Lien of attorney as attaching to check, 1036. 
 
 Choses — 
 
 Authority of attorney to dispose of client's choses or other property, 359. 
 
 Citizenship — 
 
 Citizenship as necessary qualification to admission to bar, 36. 
 
 Civil Actions — 
 
 See Compensation; Prosecuting Attorneys. 
 
 Claims — 
 
 Accepting depreciated money in payment of claim, liability of attorney for, 
 
 571. 
 Accounting as to money collected by attorney, right of client to, 595, 600. 
 Account rendered, right of client to maintain action on against attorney 
 
 for money collected, 599. 
 Action by client against attorney for money collected as resting in 
 
 contract, 599. 
 
INDEX. 1379 
 
 [References are to pages.] 
 CLAIMS — continued. 
 
 Assumpsit against attorney for money collected, right of client to main- 
 tain, 599. 
 
 Bill of particulars, right of attorney to in action by client for money 
 collected, 601. 
 
 Character of money collected, duty and liability of attorney to client 
 with respect to, 572. 
 
 Compensation, refusal to pay over money collected as defense to action 
 by attorney for, 951. 
 
 Compromise of claim, authority of attorney with respect to, 387. 
 
 Criminal liability of attorney to client for money collected, 600. 
 
 Damages recoverable from attorney in action by client for money col- 
 lected, 607. 
 
 Damages recoverable from attorney in action by client for negligence in 
 collection of claim, 594. 
 
 Defenses generally in action by client against attorney for money col- 
 lected, 602. 
 
 Defenses generally in action by client against attorney for negligence in 
 collection of claim, 593. 
 
 Delegation by attorney of authority to collect claims, 372. 
 
 Demand, necessity of making prior to bringing suit against attorney for 
 money collected, 598. 
 
 Disbarment, see that title. 
 
 Discretion, liability of attorney with respect to collection of claims 
 where he is authorized to exercise, 578. 
 
 Duty and liability of attorney generally with respect to collecting claims, 
 569. 
 
 Extension of time of payment of claims held for collection, authority 
 of attorney with respect to, 368. 
 
 Failure to pay over proceeds of claim collected, liability of attorney to 
 client for, 574. 
 
 Form of action against attorney for money collected, 599. 
 
 Instructions of client with reference to collection of claim, duty of at- 
 torney to follow, 577. 
 
 Loss of client's money deposited in bank, liability of attorney for, 572. 
 573. 
 
 Money had and received, right of client to maintain action for against 
 attorney to recover money collected, 599. 
 
 Note placed in hands for collection, authority of attorney with respect to, 
 359. 
 
 Payment of claims held for collection, authority of attorney to receive, 
 353. 
 
 Pleading and proof in action by client against attorney for negligence 
 in collection of claim, 591. 
 
 Pleading in action by client against attorney for money collected, 600. 
 
 Proof essential to establish liability of attorney for money collected, 601. 
 
1380 INDEX. 
 
 [References are to pages.] 
 CLAIMS — continued. 
 
 Purchase of outstanding claim, right of attorney with respect to, 301. 
 
 Question of law or fact, liability of attorney in action for money collected 
 as, 602. 
 
 Receipt of money for client generally, authority of attorney with respect 
 to, 361. 
 
 Retaining amount of fees from sum collected for client, right of attorney 
 with respect to, 577. 
 
 Right of action by client against attorney for money, collected, 596. 
 
 Right of action by third person against attorney for money collected, 597. 
 
 Selling or assigning claim of client, authority of attorney with respect to, 
 359. 
 
 Set-off or counterclaim, right of attorney to establish in action by client 
 for money collected, 607. 
 
 Statute of limitations running of against action by client against at- 
 torney for money collected, 604. 
 
 Statute of limitations, running of against action by client against at- 
 torney for negligence in collection of claim, 594. 
 
 Summary proceeding, right of client to institute against attorney for 
 recovery^ of money collected, 608. 
 
 Tort, liability of attorney in to client for money collected, 600. 
 
 Clerical Errors — 
 
 See Authority of Attorney. 
 
 Clerks — 
 
 Admissions by attorney's clerk, 347. 
 
 Attorney as clerk within statute entitling clerks to priority of payment 
 
 for services, 14. 
 Attorney-General, see that title. 
 
 Communication made to clerk of attorney as privileged, 172. 
 Delegation by attorney of authority to clerks, 373. 
 Law Offices, see that title. 
 Liability of attorney for act of clerk, 522. 
 
 Prohibition of clerk of court from acting as attorney in court, 111. 
 Prohibition of clerk of judge from practicing before him. 111. 
 
 Client — 
 
 Liability of Client, see that title. 
 Meaning of term, IS. 
 
 Coercion — 
 
 See Disbarment. 
 
 Cognitors — 
 
 Roman cogqitors, 2. 
 
 Collateral Attack — 
 
 See Appearance; Authority of Attorney. 
 
INDEX. 1381 
 
 [References are to pages.] 
 Collateral Security — 
 
 Authority of attorney to take collateral security for claim in his hands, 
 394. 
 
 Collection — 
 
 See Bills and Notes; Claims. 
 
 Comity — 
 
 Privilege of appearing as counsel at bar of another jurisdiction, 24. 
 
 Commercial Paper — 
 
 See Bills and Notes. 
 
 Commissioners — 
 
 Authority of attorney to bind client for payment of fees of commissioner, 
 
 463. 
 Liability of attorney for fees of commissioners, 543. 
 
 Commissions — 
 
 See Brokers. 
 
 Common I<anr — 
 
 Attorney-General, see that title. 
 
 Eligibility of women for admission to bar under common law, 46. 
 
 Commnnications — 
 
 See Privileged Communications. 
 
 Compensation — 
 
 Abandonment of contract of employment by attorney as affecting right 
 
 to compensation, 798, 952. 
 Accrual of action, see infra, this title, Action for Compensation. 
 Action for compensation — 
 
 Accrual of right of action by attorney for compensation, 870. 
 
 Action at law as remedy of attorney to recover compensation, 872. 
 
 Action in equity as remedy of attorney to recover compensation, 873. 
 
 Allegations and proof generally in action by attorney to recover 
 compensation, 881. 
 
 Evidence, see infra, this title, Evidence in Action for Compensation. 
 
 Expert evidence, see infra, this title. Evidence in Action for Com- 
 pensation. 
 
 Parties to action to recover compensation of attorney, 875. 
 
 Pleading, see infra, this title, Pleading in Action for Compensation. 
 
 Eight of attorney to sue for compensation as affected by nature of 
 services rendered, 871. 
 
 Eight of attorney to sue for compensation generally, 868. 
 
 Summary proceeding by attorney to recover compensation, 874. 
 
 Summary proceeding for recovery of compensation as between several 
 counsel, 874. 
 
1382 INDEX. 
 
 [References are to pages.] 
 COMPENSATION — contimied. 
 
 Administrator, contract with for compensation of attorney as binding 
 on estate, 725. 
 
 Admissions, see infra, this title, Evidence in Action for Compensation. 
 
 Admission to bar and good standing, compensation as depending on, 25. 
 
 Admission to bar, right to compensation for services contracted for be- 
 fore, 26. 
 
 Advertising for business as affecting right of attorney to compensation, 
 757. 
 
 Advice given and facts disclosed by attorney, validity of contract by 
 attorney for compensation as depending on, 743. 
 
 Alimony, right of attorney to compensation contracted to be paid for out 
 of, 788. 
 
 Allegations and proof, see supra, this title, Action for Compensation. 
 
 American colonies, compensation of attorneys in, 7. 
 
 Amicus curiae, compensation of, 148. 
 
 Amount of compensation to vrhich attorney is entitled under contract 
 not fixing definite amount, 769. 
 
 Amount of compensation to which an attorney is entitled under express 
 contract, 764. 
 
 Amount of compensation to which attorney is entitled under implied 
 contract, 779, 783, 786. 
 
 Annulment of marriage, right of attorney to compensation under con- 
 tract designed to facilitate, 758. 
 
 Apportionment of fees among attorneys acting jointly, 827, 829. 
 
 Assignability of contract of attorney for compensation, 727. 
 
 Assignment of cause of action by client to third person, right of attorney 
 to compensation as affected by, 766. 
 
 Associate counsel — 
 
 Agreement between attorney of record and his associate with respect 
 
 to fees of latter as binding on client, 772. 
 Amount of compensation to which associate counsel is entitled as 
 
 affected by contract with attorney first employed, 772. 
 Amount of compensation to which attorney is entitled as affected 
 
 by amount paid to associate counsel, 772. 
 Ratification of unauthorized employment of associate counsel as 
 
 entitling attorney to compensation therefor, 711. 
 Right of attorney to compensation for associate counsel employed 
 
 by authority of client, 712. 
 Eight of attorney to compensation for services of associate counsel, 
 708. 
 
 Attachment bond, allowance of counsel fees in action on, 856. 
 
 Attorney-general of state, compensation of, 1149. 
 
 Attorney-general of United States, compensation of special counsel em- 
 ployed by, 1142. 
 
INDEX. 1383 
 
 [References are to pages.] 
 COMPENSATION — continued. 
 Bankruptcy proceeding — 
 
 Allowance of attorneys fees in bankruptcy proceedings, 817. 
 Compensation of attorney for creditor in bankruptcy proceeding, 820. 
 Compensation of attorney for trustee or receiver in bankruptcy, 819. 
 Fees of attorney as entitled to priority under bankruptcy act, 824. 
 Necessity that allowance to attorney for services in bankruptcy case 
 
 be reasonable, 823. 
 Re-examination of fees paid to attorney in contemplation of bank- 
 ruptcy, 825. 
 Right of attorney for bankrupt to reasonable compensation for serv- 
 ices, 817. 
 Breach of contract of employment, damages recoverable by attorney for, 
 
 793. 
 Burden of proof, see infra, this title. Evidence in Action for Compensation. 
 Business associate, right of to bind attorney by contract for fees, 724. 
 Canada, rule in as to right of attorney to compensation, 699. 
 Capacity of client, validity of contract by attorney for compensation as 
 
 dependent on, 725. 
 Champerty — (see also the title Champerty, Barratry and Maintenance). 
 Agreement by attorney to pay cost or expenses of litigation as cham- 
 perty, 669. 
 Aiding litigation of indigent person as champertous, 674. 
 Contract by which attorney receives interest in land in controversy 
 
 as champerty, 666. 
 Contract entered in to after final judgment as champertous, 673. 
 Contract forbidding settlement by client as champertous, 672. 
 Contract for compensation to be paid out of recovery against Gov- 
 ernment as champertous, 673. 
 Contract for part of recovery as distinguished from creation of in- 
 debtedness for fees, 667. 
 Recovery on quantum meruit for service rendered under champertous 
 
 contract, 675. 
 Taking assignment of part of cause of action to secure fee as cham- 
 perty, 665. 
 Taking case on contingent fee as champerty, 664. 
 Civil law, right of advocates to compensation under, 688. 
 Construction of contract of attorney for compensation, 725. 
 Contingent fees — 
 
 Enforceability as equitable assignment of transfer to attorney of 
 
 interest in subject matter of litigation, 734. 
 Enforceability of contract by attorney for excessive compensation, 
 
 737. 
 Enforceability of contract for contingent fee as dependent on hap- 
 pening of contingency, 732. 
 
1384 INDEX. 
 
 [References are to pages.] 
 COMPENSATION — contirmed. 
 
 Contingent fees — continued. 
 
 Enforceability of contract for contingent fee as dependent on manner 
 
 of effecting contingency, 733. 
 Enforceability of contract transferring to attorney interest in sub- 
 ject-matter of litigation, 736. 
 Validity of contract by attorney for contingent fee generally, 727. 
 Validity of contract by attorney for part of land in litigation as 
 compensation, 731. 
 
 Contract for compensation for services, right of attorney to make, 723. 
 
 Conviction of one charged with crime, validity of contract for compensa- 
 tion contingent on, 753. 
 
 Court to which attorney is not admitted, right to compensation for serv- 
 ices rendered in, 27. 
 
 Death of attorney as affecting right to compensation for services, 801. 
 
 Death of client as affecting right of attorney to compensation for serv- 
 ices, 802. 
 
 Declarations, see infra, this title, Evidence in Action for Compensation. 
 
 Defenses generally in action by attorney for compensation, t/42. 
 
 Deputy, substitute or assistant prosecuting attorney, compensation of, 
 1125. 
 
 Disbarment, effect of on right to, 25. 
 
 Discharge of attorney for good cause, right to recover damages or on 
 quantum meruit in case of, 795, 
 
 Discharge of attorney wrongfully, right to recover on quantum meruit in 
 case of, 792. 
 
 Divorce, right of attorney to compensation under contract designed to 
 facilitate, 758. 
 
 Drafted man, right of attorney to compensation under contract to procure 
 discharge of, 753. 
 
 "Employee," attorney entitled to payment for services as, 14. 
 
 Employment, see infra, this title, Evidence in Action for Compensation. 
 
 Enactment of law, right of attorney to compensation for endeavoring to 
 procure, 754. 
 
 England, rule in as to right of counsel to compensation, 691. 
 
 English rule as to right of attorney to compensation, criticism of, 695. 
 
 Equitable proceedings, allowance of counsel fees in, 841. 
 
 Equity, see supra, this title. Action for Compensation. 
 
 Evasion of law, right of attorney to recover for advice given to client 
 to enable him to accomplish, 750. 
 
 Evidence in action for compensation — 
 
 Admissions or declarations as admissible in evidence in action by 
 
 attorney for compensation, 885. 
 Bill rendered by attorney as evidence in action to recover compensa- 
 tion, 886. 
 Burden of proof in action by attorney for compensation, 882. 
 
INDEX. 1385 
 
 [References are to pages.] 
 COMPENSATION — contirmed. 
 
 Evidence in action for compensation — continued. 
 Employment — 
 
 Evidence of acceptance of beneiits of attorney's services in action 
 to recover compensation, 902, 903. 
 
 Evidence of authorized employment in action by associate coun- 
 sel for compensation, 899. 
 
 Evidence of employment by corporation or stockholders in action 
 by attorney for compensation, 895. 
 
 Evidence of employment by one of several heirs or legatees in 
 action by attorney for compensation, 897. 
 
 Evidence of employment by one of several parties in action by 
 attorney to enforce joint liability for compensation, 896. 
 
 Evidence of employment by one spouse in action by attorney 
 against other spouse for compensation for services in divorce 
 suit, 900. 
 
 Evidence of employment by one spouse in action by attorney 
 against other spouse for compensation for services in mat- 
 rimonial action generally, 909. 
 
 Evidence of employment by one spouse in action by attorney 
 against other spouse for compensation generally, 905. 
 
 Evidence of employment by principal or surety in action by 
 attorney to enforce joint liability for compensation, 898. 
 
 Evidence of employment by representative person in action by 
 attorney for compensation, 893. 
 
 Evidence of ratification of unauthorized employment in action 
 by attorney for compensation, 900. 
 
 Mode of proof of employment in action by attorney for cowi- 
 pensation, 890. 
 
 Necessity of proving employment in action by attorney for com- 
 pensation, 888. 
 
 Sufficiency of proof of employment in action by attorney for 
 compensation, 891, 892. 
 Expert evidence — 
 
 Admissibility of expert testimony in action by attorney for 
 compensation, 935. 
 
 Basis of opinion of vfitness testifying as expert to value of serv- 
 ices of attorney, 940. 
 
 Necessity of expert testimony in action by attorney for com- 
 pensation, 934. 
 
 Necessity that witness have knowledge of charges in particular 
 locality in order to testify as expert to value of services uf 
 attorney, 939. 
 
 Qualification of witness to testify as expert to value of scrvice.s 
 of attorney, 937. 
 
 Weight of expert evidence as to value of services of attorney, 941. 
 
1386 INDEX. 
 
 [References are to pages,] 
 COMPENSATION — continued. 
 
 Evidence in action for compensation — continued. 
 Performance — 
 
 Fact that purpose of litigation was accomplished without attor- 
 ney's aid as affecting right of attorney to recover compen- 
 sation, 915. 
 
 Necessity of proving actual litigation as evidence of performance 
 of services in action by attorney for compensation, 913. 
 
 Necessity of proving performance of services in action by attor- 
 ney for compensation, 910. 
 
 Proof of performance by associated attorney or partner as suffi- 
 cient evidence of performance in action by attorney for 
 compensation, 914. 
 
 Proof of performance by substitute as sufficient evidence of 
 performance of services in action by attorney for compen- 
 sation, 914. 
 
 Sufficiency of proof of performance of services in action by at- 
 torney for compensation, 911. 
 Eecord of suit as evidence in action by attorney for compensation, 
 
 884. 
 Eight of plaintiff to practice law, necessity of evidence of in action 
 
 by attorney for compensation, 885. 
 Value of services — 
 
 Admissibility of evidence of amount in controversy and value of 
 property involved in action by attorney for compensation, 
 926. 
 
 Admissibility of evidence of benefit of litigation to client in 
 action by attorney for compensation, 928. 
 
 Admissibility of evidence of client's wealth or poverty in action 
 by attorney for compensation, 929. 
 
 Admissibility of evidence of importance of litigation in action by 
 attorney for compensation, 925. 
 
 Admissibility of evidence of nature and extent of services in 
 action by attorney for compensation, 923. 
 
 Admissibility of evidence of offer from adverse party in action 
 by attorney for compensation, 923. 
 
 Admissibility of evidence of result of litigation in action by 
 attorney for compensation, 928. 
 
 Admissibility of evidence of usual and customary compensation 
 in action by attorney for compensation, 930. 
 
 Burden of proof of fairness of express contract in action by 
 attorney for compensation, 918. 
 
 Competency of evidence of attorney's ability, experience, and 
 standing in action to recover compensation, 922. 
 
 Necessity and sufficiency of proof of value of services in action 
 by attorney for compensation, 916. 
 
INDEX. 1387 
 
 [References are to pages.] 
 COMPENSATION — continued. 
 
 Evidence in action for compensation — continued. 
 Value of services — continued. 
 
 Proof of value of services in action by attorney on express con- 
 tract for compensation, 917. 
 Proof of value of services in action by attorney on implied con- 
 tract for compensation, 920. 
 Proof of value of services rendered in foreign state in action by 
 
 attorney for compensation, 933. 
 Eight of court to fix fees of attorney and effect of court order, 
 933. 
 Weight of evidence in action by attorney for compensation, 887. 
 Expenditures made on behalf of client, right of attorney to reimburse- 
 ment for, 864. 
 Expert evidence, see supra, this title, evidence in action for compen- 
 sation. 
 Extra compensation, right of attorney to under agreement for fixed sum, 
 
 767, 768. 
 Fairness, validity of contract by attorney for compensation as depending 
 
 on its, 740. 
 Favor of witness in criminal case, right of attorney to recover for serv- 
 ices in securing, 750. 
 Fees and expenses of litigation, liability of attorney for, 543. 
 Form of action, see supra, this title, Action for Compensation. 
 Fraud of client, effect of on contract for compensation of attorney, 767. 
 Fraud or bad faith of attorney as defense to action for compensation, 
 
 948, 950. 
 Gambling debt, right of attorney to recover under contract for collection 
 
 of, 750. 
 Government contract, right of attorney to recover for services in in- 
 fluencing public officer to grant, 750. 
 Government department, right of attorney to recover for services rendered 
 
 before, 752. 
 Gratuity, right of defendant in action by attorney for compensation to 
 
 show that services were rendered as, 952. 
 Greater fee than that fixed by statute, right of attorney to recover under 
 
 agreement for, 750. 
 Honorarium of ancient and modern times, 8. 
 Ignorance of attorney as defense to action to recover compensation, 945, 
 
 947. 
 Impossibility of performance, amount of compensation to which attorney 
 
 is entitled in ease of, 797. 
 Indian, validity of contract for compensation by attorney with, 725. 
 Infant, right of attorney to compensation for services rendered to, 717. 
 Injunction bond, allowance of counsel fees in action on, 856. 
 Insane person, right of attorney to compensation for services rendered to, 
 719. 
 
1388 
 
 INDEX. 
 
 [References are to pages.] 
 COMPENSATION — contirmed. 
 
 Interest, recovery of in action by attorney for compensation, 962. 
 
 Law, see supra, this title. Action for Compensation. 
 
 Legal proceedings, allowance of counsel fees in, 850. 
 
 Legislative body, right of attorney to recover for services rendered before, 
 
 652. 
 License tax, failure to pay as affecting right to compensation for services, 
 
 104. 
 Lien of attorney, see that title. 
 Married woman, right of attorney to compensation for services rendered 
 
 to, 719. 
 Meritorious, necessity that defense to action by attorney for compensation 
 
 be, 944. 
 Mortgage, covenant in fixing amount of attorney's fee for foreclosure as 
 
 binding on parties, 772. 
 Municipality, right to compensation of official employed as attorney for, 
 
 753. 
 Nature of services, rendered, validity of contract for compensation as de- 
 pendent on, 752. 
 Negligence of attorney as defense to action to recover compensation, 945, 
 
 947. 
 New Jersey, rule in as to right of attorney to compensation, 703. 
 Note, binding effect of stipulation in fixing fee of attorney for collection, 
 
 776. 
 Pardon, right of attorney to recover for services in attempting to secure, 
 
 752. 
 Parties, see supra, this title, Action for Compensation. 
 Partition proceeding, allowance of compensation to attorney in, 847. 
 Partnership — 
 
 Accounting between members of law partnership with respect to 
 division of firm profits, 837. 
 
 Compensation of law partnership, 830. 
 
 Effect of dissolution of law partnership on right to compensation for 
 services, 832. 
 
 Effect on right to compensation of member of law partnership per- 
 forming services in individual capacity, 835. 
 
 Kight of member of law partnership to compensation for winding up 
 business after dissolution, 834. 
 
 Right of partnership to compensation where one partner is unlicensed, 
 26. 
 Payment as defense to action by attorney for compensation, 954. 
 Payment of fees of other counsel as defense to action by attorney for 
 
 compensation, 956. 
 Penalty, recovery of from attorney for taking unlawful fees, 967. 
 Performance, see supra, this title, Evidence in Action for Compensation. 
 
INDEX. 1389 
 
 [References are to pages.] 
 COMPENSATION — contimied. 
 
 Pleading in action for compensation — 
 
 Declaring on express contract in action by attorney for compensation, 
 
 876. 
 Declaring on quantum meruit in action by attorney for compen- 
 sation, 877. 
 Defensive pleading in action by attorney to recover compensation, 
 
 879. 
 Necessity and sufficiency of allegation of performance in action by 
 
 attorney for compensation, 878. 
 Necessity and sufficiency of allegation of plaintiff's qualification to 
 practice law in action by attorney for compensation, 879. 
 Poor person — 
 
 Amount of compensation to which attorney is entitled for serving 
 
 poor person, 813. 
 Assignment of counsel, see that title. 
 
 Common-law rule as to right of attorney to compensation for serv- 
 ices rendered in aid of poor person in criminal case, 712. 
 Eight of attorney assigned to defense of poor person in capital case 
 
 to reimbursement for expenses, 865. 
 Right of attorney to compensation for services rendered to person 
 
 suing in forma pauperis, 717. 
 Statute providing for compensation of attorney appointed to defend 
 
 poor person in criminal case, 715. 
 Statute requiring counsel to give services without compensation, 
 validity of, 145. 
 Premature termination of employment, amount of compensation to which 
 
 attorney is entitled on, 792. 
 Prevention of performance by client, amount of compensation to which 
 
 attorney is entitled in case of, 792. 
 Privileged communications, payment of retainer as necessary to bring 
 
 communication within rule as to, 191. 
 Privileged communications, testimony by attorney as to contract for com- 
 pensation as within rule respecting, 217. 
 Proescuting attorney, compensation of, 1123. 
 Prospective violations of law, right of attorney to compensation under 
 
 contract to defend anticipated prosecutions for, 753. 
 Public policy, validity of contract with attorney for compensation which 
 
 is in contravention of, 749. 
 Quantum meruit, right of attorney to recover under for services per- 
 formed under void or voidable contract, 759. 
 Question for jury, right of attorney to compensation as, 960. 
 Recovery, amount of generally in action by attorney for compensatiim, 
 
 961. 
 Recovery, amount of in action by attorney for compensation as question 
 for jury, 962. 
 
1390 INDEX. 
 
 [References arij to pages.] 
 COMPENSATION — continued. 
 
 Recovery back from attorney of money paid as compensation, right of,. 
 
 965, 966. 
 Reformation of contract for compensation between attorney and client, 
 
 power of court with respect to, 766. 
 Refusal to pay over money collected as defense to action by attorney for 
 
 compensation, 951. 
 Representative capacity, right of attorney to compensation for services. 
 
 rendered to person acting in, 720. 
 Retainer, see that title. 
 Retention of fees from funds of client, right of attorney with respect to,. 
 
 577, 837. 
 Retaining fee — 
 
 Meaning of term "retaining fee" or "retainer," 705. 
 
 Necessity and sufficiency of proof of value in action by attorney ta 
 recover retaining fee, 917. 
 
 Right of attorney to retaining fee, 705. 
 
 Rule in Canada as to right of attorney to retainer, 708. 
 Review of judgment in action by attorney for compensation, 964. 
 Right of action, see supra, this title. Action for Compensation. 
 Separation, right of attorney to compensation under contract designed to- 
 
 facilitate, 758. 
 Set-oflf or counterclaim, right of defendant to assert in action by atljrney 
 
 for compensation, 943. 
 Settlement of criminal charge, right of attorney to compensation for 
 
 procuring, 753. 
 Settlement of litigation by client — 
 
 Amount of compensation to which attorney is entitled on settlement 
 of litigation in accordance with contract of employment, 811. 
 
 General rule as to right of attorney to compensation on settlement, 
 of action by client, 804. 
 
 Liability of adverse party for compensation of attorney in case of 
 settlement by client, 812. 
 
 Right of attorney to compensation as affected by fraudulent settle- 
 ment of litigation by client, 810. 
 
 Right of attorney to compensation under contract restricting settle- 
 ment by client, 754. 
 
 Settlement by client as affecting right of attorney to compensation 
 which is dependent on success of litigation, 806. 
 Solicitation of business by attorney as affecting right to compensation,. 
 
 757, 957. 
 Statute of limitations as defense to action by attorney for compensation,. 
 
 958, 959. 
 Substitution for original attorney, amount of compensation to which at- 
 torney is entitled on, 771. 
 
INDEX. 1391 
 
 [References are to pages.] 
 COMPENSATION — oontimed. 
 
 Substitution of another attorney, amount of compensation to which at- 
 torney is entitled where performance of services is prevented by, 796. 
 
 Summary proceeding for compensation, see supra, this title, Action for 
 Compensation. 
 
 Summary proceeding, right of attorney to set up claim for compensation 
 as defense in, 619. 
 
 Suspension of law, right of attorney to compensation under contract to 
 procure, 754. 
 
 Taxable costs or statutory fees as belonging to attorney or client, 859. 
 
 Taxable costs or statutory fees as measure of attorney's compensation, 
 862. 
 
 Tax or local assessment, allowance of counsel fees in proceeding for col- 
 lection of, 856. 
 
 Time of making contract for compensation of attorney as affecting its 
 validity, 746. 
 
 Unconscionable contract by attorney for compensation, enforceability of, 
 745. 
 
 Understood by client, necessity that contract with attorney for compen- 
 sation be, 744. 
 
 United States, general rule in as to right of attorney to compensation, 
 700. 
 
 Unlicensed person, right of to compensation for services not necessarily 
 rendered by attorney, 27. 
 
 Value of services, see supra, this title. Evidence in Action for Compen- 
 sation. 
 
 Violation of duty, right of attorney to recover for advice given to officer 
 to induce him to commit, 750. , 
 
 Compromise — 
 
 Acceptance of less than amount due in satisfaction of client's claim, 
 
 authority of attorney with respect to, 395. 
 Acceptance of payment by attorney otherwise than in money, effect of as 
 
 extinguishing client's claim, 394. 
 Acceptance of payment otherwise than in money, authority of attorney to 
 
 compromise by, 390. 
 Assignment of judgment, authority of attorney to accept in payment of 
 
 client's claim, 393. 
 Attorney-General, see that title. 
 
 Authorized compromise, authority of attorney with respect to, 405. 
 Bill of sale, authority of attorney to accept in payment of client's claim, 
 
 393 
 Bond, authority of attorney to accept in payment of client's claim, 393. 
 Burden of proof of authority of attorney to accept less than amount due 
 
 on client's claim, 397. 
 Burden of proof of authority of attorney to accept payment in some- 
 thing other than money, 395. 
 
1392 
 
 lyoEx. 
 
 [References are to pages.] 
 COMPROMISE — continued. 
 
 Burden of proof of authority of attorney to compromise, 407. 
 
 Canada, rule in as to authority of attorney to compromise, 401. 
 
 Cause of action, general rule as to authority of attorney to compromise, 
 
 382. 
 Certificate of indebtedness, authority of attorney to accept in payment 
 
 of client's claim, 393. 
 Check, authority of attorney to accept in payment of client's claim, 393. 
 Claims, authority of attorney to compromise, 387. 
 Collateral security, authority of attorney to take for claim in his hands, 
 
 394. 
 Correction of clerical error in judgment reducing amount recoverable, au- 
 thority of attorney to assent to, 397. 
 County warrant, authority of attorney to accept in payment of client's 
 
 claim, 393. 
 Declarations, proof of authority of attorney to compromise by his own, 
 
 407. 
 Disbarment, see that title. 
 
 Draft, authority of attorney to accept in payment of client's claim, 393. 
 Ejectment suit, authority of attorney to compromise, 387. 
 Emergency, authority of attorney to compromise in case of, 390. 
 England, rule in as to authority of attorney to compromise, 402. 
 Foreclosure of mortgage, authority of attorney to compromise in case of, 
 
 387. 
 Fraudulent receipt of attorney for amount due client as binding on latter, 
 
 397. 
 Judgment, authority of attorney to compromise, 396, 499. 
 Land or other property, authority of attorney to accept in payment of 
 
 client's <;laim, 392. 
 Legal tender, authority of attorney to accept payment in other than, 
 
 392. 
 Liability of attorney to client for unauthorized compromise, 518. 
 Massachusetts, rule in as to authority of attorney to compromise, 388. 
 Mortgage, authority of attorney to accept in payment of client's claim, 
 
 393. 
 Kew Hampshire, rule in as to authority of attorney to compromise, 389. 
 Nonresident, authority of attorney to compromise where client is, 388. 
 Note, authority of attorney to accept in payment of client's claim, 393. 
 Note, authority of attorney to compromise in collection of, 387. 
 Presumption of authority of attorney to compromise, 406. 
 Proctor in admiralty, authority of to compromise, 387. 
 Proof of authority of attorney to accept payment in something other 
 
 than money, 395. 
 Prosecuting attorney, authority of to compromise, 387. 
 Question for jury, authority of attorney to compromise as, 407. 
 Ratification of act of attorney in accepting less than amount due, 397. 
 
INDEX. 1393 
 
 [Eeferences are to pages.] 
 COMPROMISE — continued. 
 
 Ratification of attorney's acceptance of payment other than in money, 
 395. 
 
 Revocation of express authority to compromise, 405. 
 
 Sale or assignment of client's claim, right of attorney to make when auth- 
 orized to compromise, 359. 
 
 South Carolina, rule in as to authority of attorney to compromise, 389. 
 
 Substitution of other indebtedness in lieu of client's demand, authority 
 of attorney with respect to, 393. 
 
 Trustee, authority of attorney for to compromise, 387. 
 
 Unauthorized compromise by attorney, effect of on rights of parties, 398, 
 399. 
 
 Unauthorized compromise by attorney, setting aside, 400. 
 
 Concealment — 
 
 See Disbarment. 
 
 Condemnation Proceedings — 
 
 See Eminent Domain. 
 
 Conducting Iiitigation — 
 
 See Authority of Attorney. 
 
 Confession of Judgment—' 
 
 See Judgments. 
 
 Conflicting Interests — 
 
 See Disbarment. 
 
 Conflict of lia-nrs — 
 
 Disbarment, see that title. 
 
 Law governing enforcement of attorney's lien, 1061. 
 
 Conspiracy — 
 
 Conspiracy as ground for disbarment, 1266. 
 
 Constables — 
 
 Exemption of attorney from filling ofiice of constable, 114. 
 
 Constitutional Iiaiv — 
 
 Admission to practice as judicial or legislative function, 31. 
 
 Admission to practice, right of legislature to regulate, 33. 
 
 Allowance of counsel fee in proceeding to collect tax or local assessment, 
 validity of statute providing for, 856. 
 
 Attorney General, see that title. 
 
 Compensation, validity of statute requiring counsel to give services with- 
 out, 145. 
 
 Disbarment of attorneys, power of legislature to regulate, 1170. 
 
 Examination for admission to bar, validity of statute exempting law 
 school graduate from, 72. 
 Attorneys at Law Vol. II — 88. 
 
1394 INDEX. 
 
 [References are to pages.] 
 CONSTITUTIONAL LAW — continued. 
 
 Examination of applicants for admission to bar, validity of statute dis- 
 pensing with, 65. 
 
 Examination of applicants for admission to bar, validity of statute re- 
 quiring of person already admitted, 66. 
 
 Indiana constitutional provision as to admission to bar, 59. 
 
 Lien of attorney, validity of statute allowing enforcement of in any 
 court of competent jurisdiction, 1061. 
 
 Lien of attorney, validity of statute giving on cause of action, 1010. 
 
 Oath of office before admission to bar, validity of statute regulating, 80. 
 
 Practice of law, validity of statute permitting by person not admitted as 
 attorney, 28. 
 
 "Public officer" in constitution, attorney as, 17. 
 
 Taxation of attorneys by municipality, 101. 
 
 Taxation of attorneys, validity of statute providing for, 97. 
 
 Taxation of nonresident attorneys, 102. 
 
 Test oath as prerequisite to admission to bar, validity of statute requir- 
 ing, 83. 
 
 Women, right of to admission to bar under federal constitution and stat- 
 utes, 50. 
 
 Contempt — 
 
 Advice of counsel as defense in proceeding for contempt, 629. 
 
 Contempt of court generally, 1205. 
 
 Disbarment, contempt of court as ground for, 1205. 
 
 Enforcement of liability of attorney for costs by contempt proceedings, 
 545. 
 
 Enforcement of order in summary proceeding by prosecution for con- 
 tempt, 624. 
 
 Contingent Fees ^ 
 
 See Compensation. 
 
 Continuance — 
 
 Authority of attorney to agree to continuance, 488. 
 
 Contracts — 
 
 Action by client against attorney for money collected as resting in con- 
 tract, 599. 
 Authority of attorney, see that title. 
 Champerty, see Champerty, Barratry, and Maintenance. 
 Compensation, see that title. 
 
 Dealings between attorney and client, see that title. 
 Disbarment, see that title. 
 Lien of attorney, see that title. 
 Privilege of practicing law as contract, 23. 
 
INDEX. 1395 
 
 [References are to pages.] 
 Conversion — 
 
 Liability of attorney in tort to client for money collected, 600. 
 
 Conveyancer — 
 
 Communication made to attorney acting as conveyancer as privileged, 179, 
 189. 
 
 Conveyances — 
 
 Effect of conveyance to attorney in fraud of creditors, 287. 
 Presumption as to conveyance of property to attorney, 281. 
 Validity of conveyance to attorney of subject matter of litigation, 286. 
 
 Conviction — 
 
 Conviction of crime as ground for disbarment, 1267. 
 
 Coparties — 
 
 Authority of attorney to appear for coparties, 420. 
 
 Copartnerships — 
 
 See Partnerships. 
 
 Corporations — . 
 
 Admission to bar, eligibility of corporation for, 44. 
 
 Attorney-General, see that title. 
 
 Claim for damages, authority of attorney of corporation to satisfy, 353. 
 
 Disbarment, see that title. 
 
 Evidence of employment by corporation or stockholders in action by at- 
 torney for compensation, 895. 
 
 Lien of attorney, as attaching to shares of stock, 1036. 
 
 Lien, right of corporation to claim as attorney, 982. 
 
 Presumption of authority of attorney to appear for corporation, 419. 
 
 Stockholder, right of to act as attorney for corporation, 313. 
 
 Winding up proceedings against corporation, authority of attorney to 
 enforce judgment by presenting petition in, 505. 
 
 Correction of Errors — 
 
 See Judgments. 
 
 Correspondence — 
 
 Privileged nature of correspondence betvreen attorney and client, 203. 
 Privileged nature of correspondence between attorney and third person, 
 
 203. 
 Privileged nature of correspondence between prosecuting attorney and 
 
 attorney general, 203. 
 
 Costs — 
 
 Champerty, see Champerty, Barratry, and Maintenance. 
 
 Disbarment proceeding, costs and expenses of disbarment proceeding, 
 
 1321. 
 Enforcement of liability of attorney for costs, 545. 
 
1396 INDEX. 
 
 [References are to pages.] 
 COSTS — continued. 
 
 Liability of attorney for costs because of beneficial interest in litigation, 
 
 542. 
 Liability of attorney for costs because of indorsement of writ, 541. 
 Liability of attorney for costs generally, 536. 
 
 Liability of attorney for costs in case of misconduct or negligence, 536. 
 Liability of attorney for costs where he represents nonresidence litigants, 
 
 539. 
 Liability of attorney-general for costs, 1160. 
 Lien of Attorney, see that title. 
 Taxable costs, lien of attorney as limited to, 987. 
 Taxable costs or statutory fees as belonging to attorney or client, 859. 
 Taxable costs or statutory fees as measure of attorney's compensation, 
 
 862. 
 
 Cotenants — 
 
 See Tenants in Common. 
 
 Counsel Fees — 
 
 See Compensation. 
 
 Counselors — 
 
 "Attorneys at law" and "counselors" distinguished, 17. 
 
 Counterclaim — 
 
 See Set Off. 
 
 Counties — 
 
 Jurisdiction of board of county commissioners to disbar attorney, 1178. 
 Prosecuting attorneys, see that title. 
 
 Eight of atterney to lien for services rendered before administrative 
 board, 992. 
 
 County Courts — 
 
 Eight of unlicensed person to practice in court not of record, 30. 
 
 County Warrants — 
 
 County warrant, authority of attorney to accept in payment of client's 
 claim, 393. 
 
 Courtmartial — 
 
 Jurisdiction of courtmartial to disbar attorney, 1178. 
 
 Courts — 
 
 Admission to practice as judicial or legislative function, 31. 
 Admission to practice, right of legislature to regulate, 33. 
 Clerk of court or judge, prohibition of from acting as attorney, 111. 
 Communication to judge as privileged, 173. 
 
INDEX. 1397 
 
 [References are to pages.] 
 COURTS — continued. 
 
 Compensation of attorney, right of court to fix and effect of court order, 
 
 933. 
 Compensation, right of attorney to for services rendered in court to which 
 
 attorney is not admitted, 27. 
 Court not of record, right of unlicensed person to practice in, 30. 
 Disbarment — 
 
 Court before which attorney practices as having jurisdiction to disbar 
 
 him, 1177. 
 Court having power to admit attorney as having jurisdiction to dis- 
 bar him, 1176. 
 Inherent power of court to suspend or disbar, 1167. 
 Jurisdiction generally of court to entertain disbarment proceedings, 
 
 1175. 
 Jurisdiction of appellate court to disbar attorney, 1177. 
 Jurisdiction of courtmartial to disbar attorney, 1178. 
 Jurisdiction of inferior court to disbar attorney, 1178. 
 Jurisdiction of police magistrate to disbar attorney, 1178. 
 Jurisdiction of justice's court to suspend or disbar attorney, 1178. 
 Jurisdiction to disbar attorney for offense committed in another 
 
 court, 1179. 
 Right of court to act on its own motion in instituting disbarment 
 proceeding, 1286. 
 Examination of applicants for admission to bar, conduct of by court, 
 
 66. 
 Federal court, privilege extended to state practitioner to appear in, 24. 
 Fees of court, liability of attorney for, 543. 
 Fees of court officer, liability of attorney for, 543, 544. 
 Judge, prohibition of from practicing law. 111. 
 Judicial notice, see that title. 
 Lien of atorney — 
 
 Appellate court, enforcement of attorney's lien in, 1060. 
 Court of rceord, lien of attorney as accruing only for services ren- 
 dered in, 992. 
 Court wherein enforcement of attorney's lien may be had, 1059. 
 Federal court, enforcement of attorney's lien in, 1060. 
 Money paid into court, right of attorney to lien on, 102], 1022, 1023. 
 Municipal court, right of attorney to lien for services rendered in, 
 
 992. 
 State court, enforcement of attorney's lien in, 1060. 
 Summary jurisdiction of court to enforce attorney's lien, 1070. 
 Surrogate's court, enforcement of attorney's lien in, 1060. 
 Surrogate's court, right of attorney to lien for services rendered in, 
 
 992. 
 \'alidity of statute allowing enforcement of atorney's lien in any 
 court of competent jurisdiction, 1061. 
 
1398 INDEX. 
 
 [References are to pages.] 
 COURTS — contirmed. 
 
 Officer of court, attorney as, 14. 
 
 Opinion of court, authority of attorney to agree that it shall be con- 
 clusive, 488. 
 
 Order admitting applicant to practice, right of court to review, 84. 
 
 Partner of judge, prohibition of from practicing before him, 111. 
 
 Privilege of appearing as counsel at bar of another jurisdiction, 24. 
 
 Questioning authority of attorney to appear, right of court with respect 
 to, 425. 
 
 Stipulations, see that title. 
 
 Substitution, see that title. 
 
 Summary Proceedings, see that title. 
 
 dreditors — 
 
 See Assignment for Benefit of Creditors. 
 
 Criminal Iiaw — 
 
 Advice of counsel as defense in criminal prosecution, 627.' 
 
 Attorney-General, see that title. 
 
 Conviction of one charged with crime, validity of contract for compen- 
 sation contingent on, 753. 
 
 Dealings between attorney and client, see that title. 
 
 Defense of poor person — 
 
 Amount of compensation to which attorney is entitled for serving 
 
 poor person, 813. 
 Assignment of counsel for poor persons in criminal casec. 144. 
 Common-law rule as to right of attorney to compensation for services 
 
 rendered in aid of poor person in criminal case, 712. 
 Right of attorney assigned to defense of poor person in capital case 
 
 to reimbursement for expenses, 865. 
 Statute providing for compensation of attorney appointed to defend 
 poor person in criminal case, 715. 
 
 Detectives, see that title. 
 
 Disbarment, see that title. 
 
 Favor of witnesses in criminal case, right of attorney to recover for serv- 
 ices in securing, 750. 
 
 Institution of criminal prosecution, authority of attorney with respect to, 
 370, 453. 
 
 Money collected, criminal liability of attorney to client for, 600. 
 
 Plea of guilty, authority of attorney to enter for client, 494. 
 
 Privilege of communication, waiver of by becoming state's witness, 226. 
 
 Prosecuting Attorneys, see that title. 
 
 Prospective violations of law, right of attorney to compensation under 
 contract to defend anticipated prosecutions for, 753. 
 
 Settlement of criminal charge, right of attorney to compensation for pro- 
 curing, 753. 
 
INDEX. 1399 
 
 [References are to pages.] 
 CRIMINAL LAW — continued. 
 
 Solicitor general, right of to act as counsel for accused, 311. 
 Trial of client for misdemeanor in his absence, authority of attorney to 
 agree to, 488. 
 
 Criminal Misconduct^ 
 
 See Disbarment, 
 
 Criticism — 
 
 See Disbarment. 
 
 Covenants — 
 
 See Mortgages. 
 
 Custom — 
 
 Proof of custom with respect to authority of attorney in conducting 
 litigation, 451. 
 
 Damages — 
 
 Act of attorney, damages recoverable from client for, 532. 
 
 Advice of counsel in mitigation of damages, right of client to show, 626. 
 
 Breach of contract of employment, damages recoverable by attorney for, 
 
 793. 
 Compensation, amount of recovery generally in action by attorney for, 
 
 961. 
 Discharge for good cause, right of attorney to recover damages in case 
 
 of, 795. 
 Interest, recovery of in action by attorney for compensation, 962. 
 Lien of attorney, amount of recovery in independent action to enforce, 
 
 1083. 
 Mitigation of damages for negligence of attorney, evidence admissible in, 
 
 590. 
 Money collected, damages recoverable from attorney in action by client 
 
 for, 607. 
 Negligence, damages recoverable in action by client against attorney for, 
 
 589. 
 Negligence in collection of claim, damages recoverable in action by client 
 
 against attorney for, 594. 
 Punitive damages as recoverable in action by client against attorney for 
 
 negligence, 590. 
 Question for jury, amount of recovery in action by attorney for compen- 
 sation as, 962. 
 Review of judgment in action by attorney for compensation, 964. 
 
 Dealings Between Attorney and Client — 
 
 Administrator, right of attorney acting as to represent adverse interests, 
 309. 
 
I'iOO INDEX. 
 
 [References are to pages.] 
 DEALINGS BETWEEN ATTORNEY AND CLIENT — continued. 
 Adverse employment — 
 
 Agreement permitting, 316. 
 
 Eifect of accepting, 317. 
 
 Extent and application of rule as to right of attorney to accept, 
 309. 
 
 General rule as to right of attorney to accept, 307. 
 
 Restraining attorney from accepting, 318. 
 
 Waiver of objection to acceptance by attorney, 320. 
 Adverse interest in subject-matter of employment, right of attorney to 
 
 acquire, 293. 
 Advice to client, necessity that attorney give fully, 278. 
 Agent to negotiate loans, right of attorney employed as to act as attor- 
 ney for principal, 312. 
 Assignment of property to attorney, presumption as to, 281. 
 Assignment to attorney of subject-matter of litigation, validity of, 286. 
 Authority of Attorney, see that title. 
 
 Bankrupt, right of attorney of to act for creditors or trustee, 313. 
 Civil and criminal proceedings growing out of same subject matter as 
 
 affecting right of attorney to represent conflicting interests, 319. 
 Conflicting interests, right of attorney to represent, 307. 
 Conveyance of property to attorney, presumption as to, 281. 
 Conveyance to attorney in fraud of creditors, effect of, 287. 
 Conveyance to attorney of subject-matter of litigation, validity of, 286. 
 Debtor, right of collecting attorney to act as attorney for, 313. 
 Estate, right of attorney for to represent adverse interests, 309. 
 Executor, right of attorney acting as to represent adverse interests, 309. 
 Fairness of assignment or conveyance to attorney, burden of proof as to, 
 
 284. 
 Fairness of transaction between attorney and client, burden of proof of, 
 
 272, 276. 
 Foreclosure of mortgage, right of attorney who has procured to act for 
 
 other person, 313. 
 Former retainer, effect of on attorney's duty to client, 315. 
 Fraud in dealing with client, effect of, 279. 
 
 Fraud, presumption of as to transaction with attorney, 274-276. 
 Gift by client to attorney, validity of, 288. 
 
 Good faith required of attorney in dealing with client, 272, 275. 
 Husband or wife, right of attorney acting for to represent other spouse, 
 
 310. 
 Indemnification of client from loss, validity of contract by attorney for 
 
 purpose of, 291. 
 Information to client, necessity that attorney give fully, 278. 
 Insolvent savings bank, right of commissioner who examines claims 
 against to act as attorney for assignee, 311. 
 
INDEX. 1401 
 
 [References are to pages.] 
 DEALINGS BETWEEN ATTOKNEY AND CLIENT — vontirmed. 
 
 Laches as affecting client's right to claim benefit of purchase by attorney, 
 
 306. 
 Laches as defense to proceeding to recover property conveyed to attorney, 
 
 292. 
 Liability of Attorney, see that title. 
 
 Master in chancery, right of to act as counsel in subsequent action, 310. 
 Outstanding claim, right of attorney to purchase, 301. 
 Outstanding title, right of attorney to purchase, 299. 
 Partnership, right of attorney representing to act subsequently for single 
 
 partner, 312. 
 Purchase by attorney of client's property, effect on of client's consent, 
 
 305. 
 Purchase by attorney of client's property where professional relation does 
 
 not exist, 305. 
 Purchase by attorney of property in which client is interested, effect on 
 
 rights of third persons, 304. 
 Receiver, right of attorney of party to represent, 313. 
 Referee, right of to accept employment from litigant, 310. 
 Solicitor general, right of to act as counsel for accused, 311. 
 Solicitor, right of to act as special master, 310. 
 
 State insurance department, right of attorney to act for insurance com- 
 pany, 311. 
 Stockholder, right of to act as attorney for corporation, 313. 
 Test as to whether interest represented by attorney conflicts with that ol 
 
 client, 314. 
 Transactions between attorney and client, validity of, 277. 
 Trustee for client, attorney purchasing interest in subject matter of em 
 
 ployment as, 302. 
 Trustee under deed of assignment, right of to act as attorney for creditor, 
 
 311. 
 Will by client in favor of attorney, validity of, 289. 
 
 Death — 
 
 See Compensation; Relation of Attorney and Client. 
 
 Debtor and Creditor — 
 
 Assignment for benefit of creditors, see that title. 
 
 Authority of attorney to bind client to support debtor in jail, 358. 
 
 Authority of attorney to apply property of client to payment of client's 
 
 debts, 361. 
 Bankruptcy, see that title. 
 Lien of Attorney, see that title. 
 Right of collecting attorney to act for debtor, 313. 
 
 Decedents' Estates — 
 
 Right of attorney to lien on distributive share of estate due client, 1019. 
 
1402 INDEX. 
 
 [References are to pages.] 
 DECEDENTS' ESTATES— co»*tmtted. 
 
 Eight of attorney to lien on funds collected for decedent's estate, 1019. 
 Eight of attorney to lien on proceeds of sale of decedent's estate, 1019. 
 
 Deceit — 
 
 See Disbarment. 
 
 Decisions — 
 
 See Stipulations. 
 
 Declaration — 
 
 See Pleading. 
 
 Declarations — 
 
 See Admissions and Declarations. 
 
 Decrees — 
 
 See Judgments. 
 
 Deeds — 
 
 Attorney's retaining lien as attaching to deed, 1036. 
 
 Deeds of Trnst — 
 
 See Trust Deeds. 
 
 Default — 
 
 Early English statute providing for punishment of attorney found in 
 
 default, 4. 
 Judgments, see that title. 
 
 Defenses — 
 
 See Champerty, Barratry, and Maintenance; Compensation; Disbarment; 
 Liability of Attorney; Lien of Attorney; Negligence; Summary Pro- 
 ceedings. 
 
 Defensive Pleading — 
 
 See Pleading. 
 
 Definitions and Distinctions — 
 
 Amicus curiae, meaning of, 147. 
 
 Attorney as officer of court, 14. 
 
 "Attorney at law" and "counselor" distinguished, 17. 
 
 "Attorney at law" defined, 11.. 
 
 Attorney compared with other vocations, 14. 
 
 "Attorney in fact" defined, 19. 
 
 "Attorney of record" defined, 19. 
 
 "Attorney," signification of word, 11. 
 
 Barratry defined, 654. 
 
 Champerty, barratry, and maintenance distinguished, 656. 
 
 Champerty defined, 653. 
 
INDEX. 140 a 
 
 [References are to pages.] 
 DEFINITIONS AND DISTINCTIONS — co«*t«Merf. 
 Charging lien defined and distinguished, 975. 
 "Client" defined, 18. 
 
 Constitutional or judicial officer, attorney as, 17. 
 "Lawyer" defined, 18. 
 Maintenance defined, 655. 
 "Practicing attorney" defined, 12. 
 Public officer, attorney as, 16. 
 
 "Retaining fee" or "retainer," meaning of term, 705. 
 Retaining lien defined and distinguished, 970. 
 
 Delaivare .— 
 
 Rule in Delaware as to right of attorney to act as witness, 329. 
 
 Delegation of Authority — 
 
 See Authority of Attorney. 
 
 Delivery — 
 
 See Documents; Privileged Communications. 
 
 Demand — ' 
 
 Disbarment, see that title. 
 
 Necessity of making demand prior to bringing suit against attorney for 
 
 money collected, 598. 
 Payment, see that title. 
 Process, see that title. 
 
 Demurrer — 
 
 See Pleading. 
 
 Depositions — 
 
 Admissibility of depositions in disbarment proceeding, 1310. 
 
 Power of attorney to stipulate that deposition may be read in evidence, 
 
 482. 
 
 Deputies — 
 
 See Prosecuting Attorneys. 
 
 Descent and Distribution — 
 
 Right of attorney to lien on distributive share of estate due client, 1019. 
 
 Detectives — 
 
 Advice of detective- as defense in action for malicious prosecution, 650. 
 Authority of attorney to employ detectives, 464. 
 Authority of prosecuting attorney to hire detective, 1119. 
 Disbarment, see that title. 
 
 Disabilities of Attorney — 
 
 Bond given by attorney in violation of statute or rule of court, validity 
 and effect of, 128. 
 
1404 IjNdex. 
 
 [References are to pages.] 
 DISABILITIES OF ATTORNEY — continued. 
 General disability of attorney, 124. 
 
 Notary public, right of attorney to act as in client's affairs, 130. 
 Surety, right of attorney to qualify as, 124. 
 
 Sisavonral — 
 
 See Disbarment. 
 
 Disbarment — 
 
 Abuse of authority as ground for disbarment, 1230. 
 
 Abust of court or judge thereof as ground for disbarment, 1194. 
 
 Abuse of legal process as ground for disbarment, 1230. 
 
 Accomplice, admissibility of evidence of in disbarment proceeding, 1310. 
 
 Accuser or petitioner, right of to appeal from judgment in disbarment 
 proceeding, 1331. 
 
 Acquiring interest adverse to client as ground for disbarment, 1213. 
 
 Acquittal of criminal charge as defense to disbarment proceeding, 1277. 
 
 Admission to practice, fraud in procuring as ground for disbarment, 1249. 
 
 Affidavits, admissibility of in disbarment proceeding, 1310. 
 
 Allegations and proof in disbarment proceeding, 1308. 
 
 Altering or abstracting public record or pstper as ground for disbarment, 
 1240. 
 
 Altering or mutilating of document as ground for disbarment, 1235. 
 
 Another court, jurisdiction to disbar attorney for offense committed in, 
 1179. 
 
 Another jurisdiction, conviction of crime in as ground for disbarment, 
 1271. 
 
 Another jurisdiction, jurisdiction to disbar attorney for offense committed 
 in, 1180. 
 
 Appeal from conviction as preventing disbarment for criminal miscon- 
 duct, 1275. 
 
 Appeal, review of disbarment proceeding by, 1323. 
 
 Appearance in court, authority of disbarred attorney with respect to, 
 414. 
 
 Appellate court, original jurisdiction of to disbar attorney, 1177. 
 
 Attack on court's integrity as ground for disbarment, 1192. 
 
 Attempt to extort money, conviction of as ground for disbarment, 1270. 
 
 Attorney-general, right of to institute disbarment proceeding, 1283. 
 
 Attorney, right of to institute disbarment proceeding against another at- 
 'torney, 1283. 
 
 Bankruptcy law, violation of provisions of as ground for disbarment, 
 1266. 
 
 Bar association, right and duty of to institute disbarment proceedings, 
 1284. 
 
 Bar association, right of to appeal from judgment in disbarment pro- 
 ceeding, 1331. 
 
INDEX. 1405 
 
 [References are to pages.] 
 DISBARMENT — continued. 
 
 Basis of power to suspend or disbar, 1171. 
 
 Bastardy, conviction of as ground for disbarment, 1269. 
 
 Bawdy-house, keeping of as ground for disbarment, 1266. 
 
 Blackmail as ground for disbarment, 1266. 
 
 Bribery as ground for disbarment, 1266. 
 
 Brief in pending appeal, effect of disbarment or suspension of attorney on, 
 1175. 
 
 Brief, statement in as ground for disbarment, 1200. 
 
 Canada, disbarment of attorney in, 1182. 
 
 Certiorari, review of disbarment proceeding by, 1328. 
 
 Changing view of law as ground for disbarment, 1217. 
 
 Civil or criminal in nature, disbarment proceeding as, 1282. 
 
 Client, right of to prosecute proceeding for disbarment, 1283. 
 
 Compensation, effect of disbarment on right to, 25. 
 
 Compromising criminal case as ground for disbarment, 1246. 
 
 Conspiracy as ground for disbarment, 1266. 
 
 Conspiracy to extort money as ground for disbarment, 1245. 
 
 Contempt, liability for of disbarred or suspended attorney who attempts 
 to practice, 1175. 
 
 Contempt of court as ground for disbarment, 1205. 
 
 Conviction for criminal misconduct, necessity of in order to warrant dis- 
 barment, 1271-1273. 
 
 Conviction of crime as ground for disbarment, 1267. 
 
 Conviction of crime as ipso facto disqualification or disbarment, 1270. 
 
 Costs and expenses of disbarment proceeding, 1321. 
 
 Costs, enforcement of liability of attorney for by suspension, 54.5. 
 
 County commissioners, jurisdiction of to disbar attorney, 1178. 
 
 Court before which attorney practices as having jurisdiction to disbar 
 him, 1177. 
 
 Court having power to admit attorney as having jurisdiction to disbar 
 him, 1176. 
 
 Courtmartial, jurisdiction of to disbar attorney, 1178. 
 
 Court, right of to act on its own motion in instituting disbarment pro- 
 ceeding, 1286. 
 
 Crime warranting disbarment, nature of, 1265. 
 
 Criminal misconduct generally as ground for misconduct, 1264. 
 
 Criticism of court after termination of cause as ground for disbarment, 
 1197. 
 
 Criticism of court as ground for disbarment, 1195. 
 
 Deceiving court as ground for disbarment, 1190. 
 
 Default judgment, right of disbarred or suspended attorney to move to 
 open, 1175. 
 
 Defenses in disbarment proceeding generally, 1297. 
 
 Defenses in disbarment proceeding where criminal misconduct is charged, 
 1298. 
 
1406 INDEX. 
 
 [References are to pages.] 
 DISBARMENT — continued. 
 
 Defensive pleading in disbarment proceeding, 1300. 
 
 Depositions, admissibility of in disbarment proceeding, 1310. 
 
 Detective formerly employed by opponent, employment of as ground for 
 disbarment, 1235. 
 
 Disavowal and apology to court as averting disbarment, 1107. 
 
 Dishonesty as ground for disbarment, 1264. 
 
 Divorce case, fraud or other misconduct in as ground for disbarment,. 
 1244. 
 
 Duelling as ground for disbarment, 1266. 
 
 Editor of newspaper, fact that attorney is as defense to charge of libel- 
 ing court, 1202. 
 
 Effect of disbarment generally, 1174. 
 
 Embezzlement as ground for disbarment, 1266. 
 
 Embezzlement, conviction of as ground for disbarment, 1269. 
 
 England, disbarment of attorneys in, 1181. 
 
 Escape of convict, aiding in as ground for disbarment, 1266. 
 
 Evidence, admissibility and weight of, and competency of witnesses in 
 disbarment proceeding, 1306; 
 
 Extradition, prevention of as ground for disbarment, 1249. 
 
 Failure of respondent to testify in disbarment proceeding, effect of, 
 1312. 
 
 Fair criticism as distinguished from libel of court, 1203. 
 
 False affidavit, presentation of as ground for disbarment, 1239. 
 
 False or fictitious claim, advocating as ground for disbarment, 1237. 
 
 False or fictitious surety, offering of as ground for disbarment, 1242. 
 
 False pretenses as ground for disbarment, 1266. 
 
 False representations to client as ground for disbarment, 1211. 
 
 False statement, making to court as ground for disbarment, 1239. 
 
 False testimony, permitting client to present as ground for disbarment, 
 1235. 
 
 False testimony, presenting in disbarment proceeding as ground for dis- 
 barment, 1236. 
 
 Felony, conviction of as ground. for disbarment, 1268. 
 
 Fictitious case, presentation of to court as ground for disbarment, 1238. 
 
 Findings or verdict in disbarment proceeding generally, 1312. 
 
 Forgery as ground for disbarment, 1265. 
 
 Forgery, conviction of as ground for disbarment, 1269. 
 
 Fraud generally as ground for disbarment, 1243. 
 
 Fraud or deceit, perpetration of on client as ground for disbarment, 
 1210. 
 
 Government departments, disbarment of attorney from practicing in, 
 1178. 
 
 Hearing on charges presented in disbarment proceeding, mode of, 1303. 
 
 Hearing on charges presented in disbarment proceeding, necessity of, 
 1301. 
 
INDEX. 1407 
 
 [References are to pages.] 
 DISBARMENT — continued. 
 
 Ignorance of law as ground for disbarment, 1188. 
 Illegal contract, entering into as ground for disbarment, 1253. 
 Indecent matter, conviction of sending through mails as ground for dis- 
 barment, 1269. 
 Infamous crime as ground for disbarment, 1265. 
 Inferior court, jurisdiction of to disbar attorney, 1178. 
 Inherent power of court to suspend or disbar, 1167. 
 Intoxicating liquors, illegal sale of as ground for disbarment, 1266. 
 Judge of court, misconduct of as ground for disbarment, 1256. 
 Judge, qualification of to sit in disbarment proceeding, 1305. 
 Jurisdiction generally of court to entertain disbarment proceedings, 
 
 1175. 
 Juror, interference with as ground for disbarment, 1243. 
 Jury trial in disbarment proceeding, right to, 1305. 
 Justice's court, jurisdiction of to suspend or disbar attorney, 1178. 
 Laches as bar to prosecution of disbarment proceeding, 1299. 
 Larceny as ground for disbarment, 1265. 
 
 Letter written to judge, statement in as ground for disbarment, 1200. 
 Libel, conviction of as ground for disbarment, 1270. 
 Libeling court as ground for disbarment, 1201. 
 Lynching person as ground for disbarment, 1266. 
 Mandamus, review of disbarment proceeding by, 1329. 
 Manner in which court should exercise power to disbar or suspend, 
 
 1172. 
 Massacre, participating in as ground for disbarment, 1266. 
 Misappropriation of client's funds — 
 
 As ground for disbarment generally, 1218-1219. 
 
 Attachment of funds in attorney's hands as defense, 1228. 
 
 Bailee, funds received by attorney as, 1222. 
 
 Defenses generally, 1224. 
 
 Demand for funds, necessity of, 1222. 
 
 Guardian, funds received by attorney as, 1222. 
 
 Indebtedness of client to attorney as defense, 1225. 
 
 Inexperience as defense, 1228. 
 
 Other than professional capacity, funds received by attorney in, 
 1221. 
 
 Partner, misappropriation by, 1221. 
 
 Payment as defense, 1226-1227. 
 
 Recovery of judgment for amount due from attorney, necessity of, 
 1223. 
 
 Tax collector, funds received by attorney as, 1222. 
 
 Trustee, funds received by attorney as, 1222. 
 Misconduct generally as cause for disbarment, 1186. 
 Misconduct in connection with settlement of litigation as ground for 
 
 disbarment, 1215. 
 
1408 INDEX. 
 
 [References are to pages.] 
 DISBARMENT — continued. 
 
 Misconduct outside scope of professional relation generally as ground for 
 disbarment, 1259. 
 
 Misconduct toward another attorney as ground for disbarment, 1207- 
 1208. 
 
 Misconduct toward client generally as ground for disbarment, 1209. 
 
 Misconduct toward court generally as ground for disbarment, 1189. 
 
 Misdemeanor, commission of as ground for disbarment, 1266. 
 
 Moral delinquency as ground for disbarment, 1261-1262. 
 
 Moral turpitude, conviction involving as ground for disbarment, 1269. 
 
 Murder, conviction of as ground for disbarment, 1269. 
 
 Nature of disbarment proceeding generally, 1280. 
 
 Nature of power of court to disbar or suspend, 1172. 
 
 Notary public, misconduct of as ground for disbarment, 1258. 
 
 Obstruction of justice as ground for disbarment, 1247. 
 
 Obstruction of justice, conviction of as ground for disbarment, 1269. 
 
 Obstruction of justice by corporation claim department under supervi- 
 sion of attorney as ground for disbarment, 1248. 
 
 Office, eligibility of disbarred attorney to office, 1175. 
 
 Organizing sham corporation as ground for disbarment, 1246. 
 
 Other courts, disbarment or suspension in one court as operative in, 1174. 
 
 Overcharging client as ground for disbarment, 1216. 
 
 Pardon as affecting right to disbar for criminal misconduct, 1276. 
 
 Perjury or subordination of perjury as ground for disbarment, 1265. 
 
 Perverting or obstructing justice generally as ground for disbarment, 1229. 
 
 Pleading, statement in as gound for disbarment, 1198. 
 
 Police magistrate, power of to disbar attorney, 1178. 
 
 Power to suspend or disbar as affected by statute, 1170. 
 
 Power to suspend or disbar generally, 1165, 1166. 
 
 Practice of law, disbarment as precluding attorney from, 1175. 
 
 Preferring charges against attorney before disbarment, necessity of, 1288. 
 
 Presenting charges in disbarment proceeding, manner of, 1289. 
 
 Presumptions against or in favor of defendant in disbarment proceeding, 
 1309. 
 
 Prior disbarment, concealment of as ground for disbarment, 1250. 
 
 Procedure generally in disbarment proceeding, mode of, 1287. 
 
 Prosecuting attorney, effect of suspension of attorney on right to pei-form 
 duties as, 1175. 
 
 Prosecuting attorney, eligibility of disbarred attorney to office of, 1175. 
 
 Prosecuting attorney, misconduct of as ground for disbarment, 1259. 
 
 Prosecuting attorney, right of to institute disbarment proceeding, 1283. 
 
 Punishment, disbarment proceedings not invoked for purpose of inflicting, 
 1173. 
 
 Punishment in disbarment proceeding, 1314. 
 
 Receiving stolen property, conviction of as ground for disbarment, 1269. 
 
INDEX. 14:09 
 
 [References are to pages.] 
 DISBARMENT — continued. 
 
 Record or proceeding in other action or court, admissibility of in disbar- 
 ment proceeding, 1311. 
 Reinstatement — 
 
 Grounds for reinstatement of disbarred attorney, 1335. 
 
 Matters considered by court on application to reinstate disbarred 
 
 attorney, 1333. 
 Pardon as ground for reinstatement of disbarred attorney, 1336. 
 Procedure applicable to application by disbarred attorney for re- 
 instatement, 1337. 
 Restitution as ground for reinstatement of disbarred attorney, 1337. 
 Right of court to reinstate disbarred attorney, 1332. 
 Representing conflicting interests as ground for disbarment, 1212. 
 Review of disbarment proceedings generally, 1323. 
 Revocability of license to practice law, 1165. 
 Rioting as ground for disbarment, 1266. 
 Rules of law governing other civil rights as applicable to disbarment 
 
 proceedings, 1287. 
 Rule to show cause and notice thereof as preliminary step in disbarment 
 
 proceeding, 1294. 
 Solicitation of business by advertisement as ground for disbarment, 1255. 
 Solicitation of business generally as ground for disbarment, 1254. 
 State, right of to appeal from judgment in disbarment proceeding, 1331. 
 Statute of limitations as bar to prosecution of disbarment proceeding, 
 
 1299. 
 Sufficiency of charges presented in disbarment proceeding, 1290, 1291. 
 Summary jurisdiction of court in disbarment proceeding, 1281. 
 Summary proceeding, enforcement of order in by removal from office, 624. 
 Summary proceeding, right of attorney to plead disbarment as defense 
 
 in, 621. 
 Taking undue advantage of client as ground for disbarment, 1214. 
 Termination of relation, disbarment of attorney as, 236. 
 Threatening, intimidating or coercing judge as ground for disbarment, 
 
 1193. 
 Treason, conviction of as ground for disbarment, 1268. 
 Unauthorized acts generally as grounds for disbarment, 1251. 
 Unauthorized practice as ground for disbarment, 1251. 
 Verification of charges presented in disbarment proceeding, 1293. 
 Who may institute disbarment proceeding generally, 1283. 
 Witness, improper contract with as ground for disbarment, 1234. 
 Witness, inducing to swear falsely as ground for disbarment, 1232. 
 Witness, interference with as ground for disbarment, 1231. 
 Writ of error, review of disbarment proceeding by, 1328. 
 
 Dlsbnrsements — 
 
 See Expenses. 
 
 Attorneys at Law Vol. II — 89. 
 
1410 INDEX. 
 
 [References are to pages.] 
 Discharge — 
 
 See Relation of Attorney and Client. 
 
 Discloanre — 
 
 See Compensation. 
 
 Discontinnance — 
 
 See Dismissal and IConsuit. 
 
 Discretion — 
 
 See Attorney -General ; Liability of Attorney. 
 
 Dishonesty — 
 
 See Disbarment. 
 
 Dismissal and Nonsuit — 
 
 Attorney-General, see that title. 
 
 Authority of attorney to enter or discontinue suit, 458. 
 
 Authority of attorney to enter retraxit, 459. 
 
 Effect of dismissal of litigation by client on attorney's lien, 1049. 
 
 Dissolution ^ 
 
 See Partnership. 
 
 Distinctions — 
 
 See Definitions and Distinctions. 
 
 District Attorneys — 
 
 See Attorney-General; Prosecuting Attorneys'. 
 
 Divorce — 
 
 Evidence of employment by one spouse in action by attorney against 
 other spouse to recover compensation for services in divorce suit, 
 906, 909. 
 
 Fraud of other misconduct in divorce case as ground for disbarment, 1244. 
 
 Right of attorney to compensation under contract designed to facilitate 
 divorce, 758. 
 
 Right of attorney to lien on judgment or decree for alimony, 1034. 
 
 Documents — 
 
 Appearance of vyritten instrument, testimony by attorney as to, 201. 
 Correspondence, see that title. 
 
 Delivery of document, right of client to proceed summarily against at- 
 torney to enforce, 610. 
 Delivery of written instrument, testimony by attorney as to, 201. 
 Document entrusted to attorney as privileged communication, 198. 
 Execution of written instrument, testimony by attorney as to, 201. 
 Existence of vcritten instrument, testimony by attorney as to, 201. 
 Possession of written instrument, testimony by attorney ae to, 201. 
 Subscribing witness, admissibility of testimony of attorney who is, 220. 
 
INDEX. 1411 
 
 [References are to pages.] 
 Domestic Judgments — 
 
 See Judgments. , i 
 
 Doiver — 
 
 Authority of attorney to sign demand of dower, 367. 
 
 Drafting — 
 
 See Army and Navy. 
 
 Drafts — 
 
 Authority of attorney to accept draft in payment of client's claim, 393. 
 
 Duelling — 
 
 Duelling as ground for disbarment, 1266. 
 
 Duelling Oath — 
 
 See Oaths. 
 
 Duty of Attorney to Client — 
 
 See Liability of Attorney. 
 
 Editor of Neurspaper — 
 
 See Disbarment. 
 
 Education — 
 
 Admission to bar, education as qualification for, 56. 
 
 Admission to bar, statutes prescribing educational qualifications for, 58. 
 
 Ejectment — 
 
 Compromise of ejectment suit, authority of attorney to make, 387. 
 Judgment in ejectment, authority of attorney to extend time for release 
 
 of, 368. 
 Second trial in action of ejectment, authority of attorney to dismiss 
 
 client's demand for, 488. 
 
 Eligibility — 
 
 See Admission to Practice. 
 
 Embezzlement — 
 
 As ground for disbarment, 1266. 
 
 Conviction of embezzlement as ground for disbarment, 1269. 
 
 Emergency — 
 
 See Compromise. 
 
 Eminent Domain — 
 
 Right of attorney to lien on judgment in eminent domain proceeding, 1032. 
 
 Employees — 
 
 Attorney as employee having claim for labor and services, 14. 
 Authority of attorney to bind client to pay employees of attorney, 358. 
 Communication made to employee of attorney as privileged, 172. 
 Delegation by attorney of authority to clerks, 373. 
 
1412 INDEX. 
 
 [References are to pages.] 
 Employment — 
 
 See Compensation; Privileged Communications. 
 
 England — 
 
 Attorney-general in England, 1131. 
 Attorneys in ancient England, 4. 
 Barristers and solicitors in England, 5. 
 Benchers as governing body of inns of court, 5. 
 Bill of privilege in early times, 9. 
 
 Champerty, see Champerty, Barratry, and Maintenance. 
 Compensation, criticism of English rule as to right of attorney to, 695. 
 Compensation, rule in England as to right of counsel to, 691. 
 Compromise, see that title. 
 Disbarment of attorneys in England, 1181. 
 
 Early English statute providing for punishment of attorney found in de- 
 fault, 4. 
 Honorarium of ancient and modern times, 8. 
 Privileges and exemptions, see that title. 
 Prosecuting officers in England, 1089. 
 Student as member of inns of court, 5. 
 
 Enrollment — 
 
 Enrollment or registration on admission to bar, 83. 
 
 Equitable Assignment — 
 
 See Assigimients. 
 
 Equitable Conversion — 
 
 Authority of attorney to make agreement which would effect equitable 
 conversion, 357. 
 
 Equitable Iiien — 
 
 See Lien of Attorney. 
 
 Equitable Proceedings — 
 
 See Compensation. 
 
 Equity — 
 
 Accounting as to money collected by attorney, right of client to, 595, 600. 
 Actions and proceedings, see that title. 
 Compensation, see that title. 
 
 Traud, right of action by client to enforce liability of attorney for, 581. 
 I^egligenoe, right of client to maintain bill in equity against attorney for, 
 582. 
 
 Error — 
 
 See Appeal and Error. 
 
 Errors — 
 
 See Authority of Attorney; Judgments. 
 
INDEX. 1413 
 
 [References are to pages.] 
 Escape — 
 
 Escape of convict, aiding in as ground for disbarment, 1266. 
 
 Estates — 
 
 Right of attorney for estate to represent adverse interests, 309. 
 
 Evidence — 
 
 Admissions and declarations — 
 
 Clerk of attorney, admissions by, 347. 
 
 Correspondence between attorney and client, admissibility of ad- 
 mission contained in, 204. 
 During employment, necessity that admissions by attorney be made, 
 
 346. 
 During trial, authority of attorney to make admission of fact, 487. 
 Formality -and distinctness as prerequisite to admissibility of ad- 
 missions by attorney, 343. 
 General rule as to admission by attorney as evidence against client, 
 
 340. 
 Implied power of attorney to make admission on behalf of client, 476. 
 Mistake of facts, right of client to relief from admission by attorney 
 
 made under, 486. 
 Partner, admission of as binding on firm, 323. 
 Scope of attorney's authority, necessity that admissions by attorney 
 
 be within, 342. 
 Subsequent trial, competency of admission of attorney at, 347. 
 Admission to bar, sufficiency of evidence against applicant for, 92. 
 Advice of counsel, sufficiency of as defense as question of law or fact gen- 
 erally, 627. 
 Advice of counsel, sufficiency of as defense in action for malicious prose- 
 cution as question of law or fact, 634. 
 Associate counsel, proof of consent by client to employment of, 373. 
 Authority of attorney — 
 
 Appeal or error, presumption as to authority to prosecute, 510. 
 Appearance — 
 
 Attorney as competent witness to prove his authority to appear, 
 
 434. 
 Bankruptcy proceedings, presumption of authority of attorney 
 
 to appear, 419. 
 Burden of proof of authority of attorney to appear, 432. 
 Conclusiveness of presumption of authority of attorney to appear, 
 
 420. 
 Corporation, presumption of authority of attorney to appear for, 
 
 419. 
 Filing of pleading, presumption of authority of attorney to 
 
 appear from, 419. 
 Infant, presumption of authority of attorney to appear for, 419. 
 
14:14: INDEX. 
 
 [References are to pages.] 
 EVIDENCE — continued. 
 
 Authority of attorney — continued. 
 Appearance — continued. 
 
 Judgment, presumption as to authority of attorney to appear 
 
 after, 418. 
 Municipality, presumption oi authority of attorney to appear for, 
 
 419. 
 Nonresident, presumption of authority of attorney to appear for, 
 
 419. 
 Partnership, presumption as to authority of attorney who ap- 
 pears for defendant in action against, 420. 
 Person who is not attorney, presumption of authority of to ap- 
 pear, 420. 
 Presumption of authority of attorney to appear, 415, 423. 
 Public officer, presumption of authority of attorney to appear for, 
 
 419. 
 Question of law or fact, authority of attorney to appear as, 435. 
 Several persons, presumption of authority of attorney to appear 
 
 for, 419, 420. 
 State, presumption of authority of attorney to appear for, 419. 
 Sufficiency of evidence of authority of attorney to appear, 432. 
 Use of another, presumption of authority of attorney to appear 
 in action by one person to, 419. 
 Burden of proof of authority of attorney, 359. 
 Compromise — 
 
 Authority of attorney to compromise as question for jury, 407. 
 Burden of proof of authority of attorney to compromise, 407. 
 Presumption of authority of attorney to compromise, 406. 
 Conducting litigation, presumption as to authority of attorney in, 
 
 451. 
 Conducting litigation, proof of custom with respect to authority of 
 
 attorney in, 451. 
 Confession of judgment for client, presumption as to authority of 
 
 attorney with respect to, 493. 
 Expense, presumption as to authority of attorney to incur, 544. 
 Notice affecting rights of client, presumption as to authority of 
 
 attorney to give, 475. 
 Payment — 
 
 Authority of attorney to collect mortgage as evidenced by his 
 
 employment to draw papers, 366. 
 Burden of proof of authority of attorney to accept less than 
 
 amount due on client's claim, 397. 
 Burden of proof of authority of attorney to accept payment in 
 
 something other than money, 395. 
 Demand of payment, presumption of authority of attorney to 
 make, 367. 
 
INDEX. 1415 
 
 [References are to pages.] 
 EVIDENCE — continued. 
 
 Authority of attorney — continued. 
 Payment — continued. 
 
 Possession of evidence of indebtedness as creating presumption 
 
 of authority to receive payment, 364. 
 Proof of authority to accept payment in something other than 
 
 money, 395. 
 Proof of authority of attorney to receive payment of debt, 363. 
 Presumption as to authority of attorney, 354. 
 
 Service of original process, presumption as to authority of attorney 
 to accept, 466. 
 Compensation of attorney — 
 
 Ability, experience and standing of attorney, competency of evidence 
 
 of in action to recover compensation, 922. 
 Acceptance of benefits of attorney's services, evidence of in action 
 
 to recover compensation, 902, 903. 
 Admissions or declarations as admissible in evidence in action by 
 
 attorney for compensation, 885. 
 Allegations and proof generally in action by attorney to recover 
 
 compensation, 881. 
 Amount in controversy and value of property involved, admissibility 
 
 of evidence of in action by attorney for compensation, 926. 
 Associate counsel, evidence of authorized employment in action by 
 
 for compensation, 899. 
 Associate attorney or partner, proof of performance as suflicient evi- 
 dence of performance in action by attorney for compensation, 914. 
 Benefit of litigation to client, admissibility of evidence of in action 
 
 by attorney for compensation, 928. 
 Bill rendered by attorney as evidence in action to recover compen- 
 sation, 886. 
 Burden of proof in action by attorney for compensation, 882. 
 Corporation or stockholders, evidence of. employment by in action by 
 
 attorney for compensation, 895. 
 Court, right 'of to fix fees of attorney and effect of court order, 933. 
 Expert evidence — 
 
 Admissibility of expert testimony in action by attorney for com- 
 pensation, 935. 
 Basis of opinion of witness testifying as expert to value of serv- 
 ices of attorney, 940. 
 Necessity of expert testimony in action by attorney for compen- 
 sation, 934. 
 Necessity that witness have knowledge of charges in particular 
 locality in order to testify as expert to value of services of 
 attorney, 939. 
 Qualification of witness to testify as expert to value of services 
 
 of attorney, 937. 
 Weight of expert evidence as to value of services of attorney, 941. 
 
1416 INDEX. 
 
 [References are to pages.] 
 EVIDENCE — continued. 
 
 Compensation of attorney — continued. 
 
 Fact that purpose of litigation was accomplished without attorney's 
 aid as aiTecting right of attorney to recover compensation, 915. 
 
 Fairness of express contract, burden of proof of in action by attorney 
 for compensation, 918. 
 
 Importance of litigation, admissibility of evidence of, 925. 
 
 Infant, burden of proof of right of attorney to compensation for serv- 
 ices rendered to, 719. 
 
 Mode of proof of employment in action by attorney for compensation, 
 890. 
 
 Nature and extent of services, admissibility of evidence of in action 
 by attorney for compensation, 923. 
 
 Necessity of proving actual litigation as evidence of performance 
 of services in action by attorney for compensation, 913. 
 
 Necessity of proving employment in action by attorney for compen- 
 sation, 888. 
 
 Necessity of proving performance of services in action by attorney 
 for compensation, 910. 
 
 Necessity of proving right of plaintiff to practice law in action by 
 attorney for compensation, 885. 
 
 Offer from adverse party, admissibility of evidence of in action by 
 attorney for compensation, 923. 
 
 Principal or surety, evidence of employment by in action by attorney 
 to enforce joint liability for compensation, 898. 
 
 Question for jury, amount of recovery in action by attorney for com- 
 pensation as, 962. 
 
 Question for jury, right of attorney to compensation as, 960. 
 
 Ratification of unauthorized employment, evidence of in action by 
 attorney for compensation, 900. 
 
 Record of suit as evidence in action by attorney for compensation, 
 884. 
 
 Representative person, evidence of employment by in action by at- 
 torney for compensation, 893. 
 
 Result of litigation, admissibility of evidence of in action by attorney 
 for compensation, 928. 
 
 Several heirs or legatees, evidence of employment by one of in action 
 by attorney for compensation, 897. 
 
 Several parties, evidence of employment by one of in action by attor- 
 ney to enforce joint liability for compensation, 896. 
 
 Spouse, evidence of employment by in action by attorney against 
 other spouse to recover compensation, 905, 906, 909. 
 
 Substitute, proof of performance by as sufficient evidence of perform- 
 ance of services in action by attorney for compensation, 914. 
 
 Sufficiency of proof of performance of services in action by attorney 
 for compensation, 911. 
 
INDEX. 1417 
 
 [References are to pages.] 
 EVIDENCE — continued. 
 
 Compensation of attorney — continued. 
 
 Sufficiency of proof of employment in action by attorney for com- 
 pensation, 891, 892. 
 Usual and customary compensation, admissibility of evidence of usual 
 and customary compensation in action by attorney for compen- 
 sation, 930. 
 Value of services — 
 
 Necessity and sufficiency of proof of value in action by attorney 
 
 to recover retaining fee, 917. 
 Necessity and sufficiency of proof of value of services in action 
 
 by attorney for compensation, 916. 
 Proof of value of services in action by attorney on express con- 
 tract for compensation, 917. 
 Proof of value of services in action by attorney on implied 
 
 contract for compensation, 920. 
 Proof of value of services rendered in foreign state in action by 
 attorney for compensation, 933. 
 Wealth or poverty of client, admissibility of evidence of in action 
 
 by attorney for compensation, 929. 
 Weight of evidence in action by attorney for compensation, 887. 
 Dealings between attorney and client — 
 
 Assignment or conveyance to attorney, burden of proof as to fairness 
 
 of, 284. 
 Assignment or conveyance to attorney, presumption as to, 281. 
 Fairness of transaction occurring after termination of relation, bur- 
 den of proof as to, 276. 
 Fairness of transaction vpith client, burden of proof as to, 272. 
 Gift by client to attorney, burden of proof as to validity of, 288. 
 Gift by client to attorney, presumption as to validity of, 288. 
 Undue influence, presumption of from relation of attorney and client, 
 289. 
 Disbarment — 
 
 Admissibility in disbarment proceeding of record or proceeding in 
 
 other action or court, 1311. 
 Admissibility of deposition in disbarment proceeding, 1310. 
 Admissibility of evidence of accomplice in disbarment proceeding. 
 
 1310. 
 Competency of witnesses and admissibility and weight of evidence in 
 
 disbarment proceeding, 1306. 
 Necessity that proof agree with allegations in disbarment proceeding, 
 
 1308. 
 Presumptions against or in favor of defendant in disbarment pro- 
 ceeding, 1309. 
 Fraud — 
 
 Burden of proof in action by client against attorney for fraud, 581. 
 
1418 INDEX. 
 
 [Eeferences are to pages.] 
 EVIDENCE — continued. 
 Fraud — • continued. 
 
 Presumption of fraud where parties are not attorney and client, 276. 
 Presumption of fraud with respect to dealing between attorney and 
 client, 274. 
 Judicial notice of who are practicing attorneys, 13. 
 Lien of attorney — 
 
 Evidence in independent action to enforce attorney's lien, 1083. 
 Notice of attorney's charging lien presumed, 998. 
 Money collected — 
 
 Liability of attorney in action for money collected as question of 
 
 law or fact, 602. 
 Proof essential to establish liability of attorney for money collected, 
 601. 
 Negligence — 
 
 Admissibility of evidence in action by client against attorney for 
 
 negligence, 586. 
 Burden of proof in action against attorney for negligence, 584. 
 Evidence admissible in mitigation of damages in action by client 
 
 against attorney for negligence, 590. 
 Negligence of attorney as question of law or fact, 551, 586. 
 Pleading and proof in action by client against attorney for negligence 
 
 in collection of claim, 591. 
 Presumptions in action by client against attorney for negligence, 585. 
 Objections to admission of evidence, authority of attorney during trial to 
 
 waive, 487. 
 Privileged communications, see that title. 
 
 Ratification of act of attorney as question of law or fact, 377. 
 Ratification of act of attorney, burden of proof of, 359, 377. 
 Stipulation as to matters of evidence, power of attorney to make, 482. 
 Summary proceeding — 
 
 Admissibility and sufficiency of evidence in summary proceeding 
 
 against attorney, 617. 
 Presumption as to finding of court in summary proceeding against 
 attorney, 619. 
 Witnesses, see that title. 
 
 Examinations — 
 
 See Bar Examinations. 
 
 Examiners — 
 
 Liability of attorney for fees of examiners, 543. 
 
 Exceptions — 
 
 See Trial. 
 
 Excessive Fees — 
 
 See Compensation. 
 
INDEX. 1419 
 
 [References are to pages.l 
 
 Xsecution — 
 
 See Documents. 
 
 Executions — 
 
 Advice of counsel as defense to officer acting under fieri facias or execu- 
 tion, 627. 
 
 Alias execution, authority of attorney to enforce judgment by issuing, 505. 
 
 Authority of attorney to issue execution on judgment, 502. 
 
 Body execution, authority of attorney to enforce judgment by issuing, 
 505. 
 
 Illegal execution issued by attorney, liability of client for, 532. 
 
 Indemnity to secure levy under execution, authority of attorney to give, 
 503, 505. 
 
 Instructions by attorneys as to enforcement of execution as binding client, 
 505. 
 
 Lien of attorney as attaching to execution in his hands, 1037. 
 
 Lien of attorney, enforcement of by order on sheriff or assignee of judg- 
 ment to pay over fund, 1072. 
 
 Lien of attorney, issuance of execution to enforce, 1071. 
 
 Payment of execution, authority of attorney to receive, 362, 502. 
 
 Proceeds of property sold under execution, authority of attorney to re- 
 ceive, 369. 
 
 Release of execution lien, authority of attorney with respect to, 409. 
 
 Staying execution in favor of client, authority of attorney Vfith respect 
 to, 508. 
 
 Unlavi^ful execution and seizure of property, liability of attorney to third 
 person for, 526. 
 
 Execution Sales — 
 
 See Judicial Sales. 
 
 Executors and Administrators — 
 
 Adverse interests, right of attorney who is executor or administrator to 
 
 represent, 309. 
 Compensation, contract for by attorney with administrator as binding on 
 
 estate, 725. 
 Compensation, right of attorney to for services rendered to executor or 
 
 administrator, 721. 
 Filing of claim in administration proceedings, power of attorney to waive, 
 
 484. 
 Lien for services rendered to executor or administrator, right of attorney 
 
 to, 992. 
 Lien on funds in hands of or owing to executor, administrator, or trustee, 
 
 right of attorney to, 1017. 
 Lien, right of representative of attorney to claim, 982. 
 Privilege of communication by client's executor or administrator, waiver 
 
 of, 222. 
 Summary proceeding against attorney, right of executor or administrator 
 
 of client to institute, 617. 
 
1420 INDEX. 
 
 [References are to pages.] 
 Exemptions — 
 
 See Privileges and Exemptions. 
 Existence — 
 
 See Documents; Privileged Communications. 
 
 Ex Parte Affidavits — 
 
 See AfSdavits. 
 
 Expenses — 
 
 Attorney-general, authority of to incur expenses, 1160. 
 
 Authority of attorney to incur expenses as depending on contract of cm» 
 
 ployment, 465. 
 Champerty, see Champerty, Barratry, and Maintenance. 
 Disbarment proceeding, costs and expenses of disbarment proceeding, 1321^ 
 Liability of attorney for fees and expenses of litigation, 543. 
 Lien of attorney as extending to compensation, disbursements, and ex-^ 
 
 penses due him, 988. 
 Poor person, right of attorney assigned to defense of in capital ease ta 
 
 reimbursement for expenses, 865. 
 Presumption as to liability of attorney to incur expense for client, 544. 
 Prosecuting attorney, authority of to incur expenses, 1118. 
 Reimbursement for expenditures made on behalf of client, right of at- 
 
 torney to, 864. 
 
 Experience — 
 
 See Compensation. 
 
 Expert Evidence — 
 
 See Evidence. 
 
 Expert AVitnesses — 
 
 See Witnesses. 
 
 Express Contracts — 
 
 See Compensation. 
 
 Extending Time of Payment — 
 
 See Payment. 
 
 Extra Compensation — 
 
 See Compensation. 
 
 Extradition — 
 
 See Disbarment. 
 
 Extortion — 
 
 Conviction of attempt to extort money as ground for disbarment, 1270^ 
 
 Failure to Testify — 
 
 See Disbarment. 
 
INDEX. 1421 
 
 [References are to pages.] 
 Tairness — 
 
 See Compensation; Dealings Between Attorney and Client. 
 
 False Claims — 
 
 See Disbarment. 
 
 False Imprisonment — 
 
 Liability of client for false imprisonment by attorney, 531. 
 
 False Pretenses — 
 
 False pretenses as ground for disbarment, 1266. 
 
 False Representations — 
 
 See Disbarment; Fraud. 
 
 False Statements — 
 See Disbarment. 
 
 False Testimony — 
 
 See Disbarment. 
 
 Federal Constitution — 
 
 See Constitutional Law. 
 
 Federal Courts — 
 
 See Courts. 
 
 Federal Government — 
 
 See Prosecuting Attorney. 
 
 Federal Statutes — 
 
 See Attorney-General. 
 
 Fees — 
 
 See Compensation. 
 
 Felony — 
 
 Conviction of felony as ground for disbarment, 1268. 
 
 Fictitious Case — 
 
 See Disbarment. 
 
 Fictitious Claim — 
 
 See Disbarment. 
 
 Tieri Facias — 
 
 See Executions. 
 
 Filing — 
 
 See Lien of Attorney; Pleading. 
 
 Findings — 
 
 See Disbarment; Summary Proceedings. 
 
1422 INDEX. 
 
 [References are to pages.] 
 Fines — 
 
 Right of attorney to lien on judgment to recover fine, 1032. 
 Summary proceedings, see that title. 
 
 Foreclosure — 
 
 See Mortgages. 
 
 Foreign Countries — 
 
 Admission of attorneys of foreign countries to bar, 88. 
 
 Foreign Judgments — ' 
 
 Validity of foreign judgment procured by virtue of unauthorized appear- 
 ance of attorney, 445. 
 
 Foreign Jurisdiction — 
 
 See Compensation. 
 
 Foreign Lairs — 
 
 Proof of foreign law by attorney, 333. 
 
 Forgery — 
 
 As ground for disbarment, 1265. 
 
 Conviction of forgery as ground for disbarment, 1269, 
 
 Form of Action — 
 
 See Actions and Proceedings. 
 
 Fraud — 
 
 Assignment or conveyance to attorney, validity of, 281, 286, 287. 
 
 Burden of proof in action by client against attorney for fraud, 581. 
 
 Communication in furtherance of fraudulent purpose as privileged, 214. 
 
 Compensation of attorney — 
 
 Effect of fraud of client on contract for compensation of attorney, 767. 
 Fraud or bad faith of attorney as defense to action for compensation, 
 
 948, 950. 
 Right of attorney to compensation as affected by fraudulent settle- 
 ment of litigation by client, 810. 
 
 Disbarment, see that title. 
 
 Effect of fraud of attorney in dealing with client,' 279. 
 
 Fraudulent receipt of attorney for amount due client as binding on latter, 
 397. 
 
 Good faith required of attorney in dealing with client, 272. 
 
 Judgments, see that title. 
 
 Liability of attorney to client for fraudulent conduct, 514. 
 
 Liability of attorney to third person for fraudulent or tortious act, 523. 
 
 Liability of client for fraudulent act of attorney, 532. 
 
 Lien of attorney, effect of fraudulent sale of litigation by client on, 1044. 
 
 Necessity that objection of authority of attorney to appear raise sus- 
 picion of fraud, 429. 
 
INDEX. 1423 
 
 [References are to pages.] 
 FRAUD — continued. 
 
 Presumption of fraud where parties are not attorney and client, 276. 
 Eight of action by client against attorney for fraud, 581. 
 Statute of limitations, running of against action by client against at- 
 torney for fraud, 581. 
 Trespass, right of client to maintain against attorney for fraud, 582. 
 Will made by client in favor of attorney, effect of fraud on, 920. 
 
 Frandnlent Conveyances — . 
 
 Effect of conveyance to attorney in fraud of creditors, 287. 
 
 Friend — 
 
 Communication made to attorney acting as friend as privileged, 189. 
 
 Fnnds — 
 
 See Money; Privileged Communications. 
 
 Gambling — 
 
 Right of attorney to recover under contract for collection of gambling 
 debt, 750. 
 
 Garnishment — 
 
 Liability of attorney as garnishee of funds of client, 529. 
 Priority of attorney's lien as against garnishment proceeding, 986. 
 Eight of attorney to set up garnishment of fund as defense in summary 
 proceeding, 620. 
 
 Georgia — 
 
 Rule in Georgia as to priority of attorney's lien, 987. 
 Rule in Georgia as to right of attorney to act as witness, 330. 
 
 Gifts — 
 
 Validity of gift by attorney to client, 288. 
 
 Good Faith — 
 
 See Dealings between Attorney and Client; Liability of Attorney; Ma- 
 licious Prosecution; Summary Proceedings. 
 
 Government — 
 
 See Attorney-General; Champerty, Barratry, and Maintenance; Compensa- 
 tion; Prosecuting Attorneys. 
 
 Government Departments — 
 
 See Disbarment. 
 
 Government Funds — 
 
 Right of attorney to lien on public or government funds, 1020. 
 
 Grand Jury — 
 
 See Attorney-General; Prosecuting Attorneys. 
 
1424 INDEX. 
 
 [References are to pages.] 
 Gratuitous Services — 
 
 See Compensation. 
 
 Greece — 
 
 Advocates of ancient Greece, 1. 
 
 Grounds for Disbarment — 
 
 See Disbarment. 
 
 Guaranty — 
 
 Attorney not guarantor or insurer, 551. 
 
 Guardian and Ward — 
 
 Authority of attorney of guardian ad litem to receive proceeds of settle- 
 ment of ward's cause of action, 370. 
 
 Loss of attorney's lien by appointment of guardian, 1002. 
 
 Misappropriation of funds received by attorney as guardian as ground 
 of disbarment, 1022. 
 
 Eight of attorney to compensation for services rendered to guardian, 720. 
 
 Handwriting — 
 
 Admissibility of testimony by attorney as to handwriting of client, 219. 
 
 Hairali — 
 
 Right of foreigner to be admitted to bar, 38. 
 
 Hearing — 
 
 See Disbarment; Summary Proceedings. 
 
 Heirs — 
 
 Evidence of employment by one of several heirs or legatees in action by 
 
 attorney for compensation, 897. 
 Waiver of privilege of communication by client's heirs, 222. 
 
 Historical — 
 
 American colonies, attorneys in, 6. 
 American colonies, fees of attorneys in, 7. 
 Attorney-general, original of office of, 1131. 
 Barristers and solicitors in England, 5. 
 Benchers as governing body of inns of court, 5. 
 Bill of privilege in early times, 9. 
 Champerty — 
 
 Adoption in United States of English laws against champerty, bar- 
 ratry, and maintenance, 661. 
 
 Origin of prohibitory measures against champerty, barratry, and 
 maintenance, 657. 
 
 Purpose of laws against champerty, barratry, and maintenance, 659. 
 Civil law, right of advocates to compensation under, 688. 
 English attorneys in ancient times, 4. 
 
INDEX. 1425 
 
 [References are to pages.] 
 HISTORICAL — continued. 
 
 English statute of early date providing for punishment of attorney found 
 
 in default, 4. 
 Greece, advocates of, 1. 
 
 Honorarium of ancient and modern times, 8. 
 Lien of attorney — 
 
 Origin of charging lien, 976. 
 
 Origin of retaining lien, 971. 
 Roman cognitors, procurators, and advocates, 2. 
 Roman jurisconsults, 3. 
 Student as member of inns of court, 5. 
 
 Homestead — 
 
 Right of attorney to lien on homestead, 1028. 
 
 Homicide — 
 
 Advice of counsel as defense in prosecution for murder, 627. 
 Conviction of murder as ground for disbarment, 1269. 
 
 Husband and Wife — 
 
 Acting for one spouse, right of attorney to represent other spouse when, 
 310. 
 
 Alimony, right of attorney to compensation contracted to be paid for 
 out, 788. 
 
 Annulment of marriage, right of attorney to compensation under contract 
 designed to facilitate, 758. 
 
 Communication made to attorney by husband or wife as privileged, 177. 
 
 Divorce action, evidence of employment by one spouse in action by at- 
 torney against other spouse to recover compensation for services in. 
 906. 
 
 Divorce, right of attorney to compensation under contract designed to 
 facilitate, 758. 
 
 Employment by one spouse in action by attorney against other spouse 
 to recover compensation, evidence of, 905. 
 
 Lien for services rendered to married woman, right of attorney to, 99]. 
 
 Lien on judgment or decree for alimony, right of attorney to, 1034. 
 
 Married women, see that title. 
 
 Matrimonial action generally, evidence of employment by one spouse in 
 action by attorney against other spouse for compensation for serv- 
 ices in, 909. 
 
 Separation agreement, authority of attorney to bind client by, 358. 
 
 Separation, right of attorney to compensation under contract designed to 
 facilitate, 758. 
 
 Identity — 
 
 See Privileged Communications. 
 AttornevB at Law Vol. II — 90. 
 
1426 INDEX. 
 
 [References are to pages.] 
 Ignorance — 
 
 Ignorance of attorney as defense to action to recover compensation, 945, 
 
 947. 
 Ignorance of law as ground for disbarment, 1188. 
 Liability of attorney for loss resulting from ignorance of law, 553. 
 
 Illegal Contracts — 
 
 See Champerty, Barratry, and Maintenance; Compensation; Dealings be- 
 tween Attorney and Client; Disbarment. 
 
 Illness — 
 
 Illness of attorney as terminating relation, 236. 
 
 Immunity — 
 
 See Privileges of Attorney. 
 
 Implied Contracts — 
 
 See Compensation. 
 
 Impossibility of Performance — 
 
 See Compensation. 
 
 Imprisonment — 
 
 See Summary Proceedings. 
 
 Imprisonment for Debts — 
 
 Authority of attorney to release debtor from imprisonment, 411. 
 
 Imputed Negligence — 
 
 See Negligence. 
 
 Imputed Notice — 
 
 Notice or knowledge of attorney as imputed to client, 266. 
 
 Incidental Services — 
 
 See Lien of Attorney. 
 
 Indebtedness — 
 
 See Authority of Attorney; Certificates of Indebtedness; Payment. 
 
 Indecent Matter — 
 
 See Postal Laws. 
 
 Indemnity — 
 
 See Executions. 
 
 Indemnity Bonds — 
 
 Authority of attorney to execute indemnity bond, 355. 
 
 Indemnity Contracts — 
 
 Authority of attorney to bind client by contract of indemnity, 357. 
 Validity of contract by attorney to indemnify client, 291. 
 
INDEX. 1427 
 
 [References are to pages.] 
 Independent Security — 
 
 See Lien of Attorney. 
 
 Indians — 
 
 Validity of contract for compensation by attorney with Indian, 725. 
 
 Indiana — 
 
 See Admission to Practice. 
 
 Indigent Persons — 
 
 See Champerty, Barratry, and Maintenance; Poor Persons. 
 
 Indorsement of Writ^ 
 
 See Costs. 
 
 Inexperience — 
 See Disbarment. 
 
 Infamous crimes — 
 
 Infamous crime as ground for disbarment, 1265. 
 
 Infants — 
 
 Presumption of authority of attorney to appear for infant, 419. 
 
 Eight of attorney to compensation for services rendered to infant, 717. 
 
 Right of infant to be admitted to bar, 35. 
 
 Right to charging lien for services rendered to infant, 991. 
 
 Inferior Courts — 
 
 See Courts. 
 
 Informalities — 
 
 See Stipulations. 
 
 In Forma Pauperis ^ 
 
 See Poor Persons. 
 
 Information — 
 
 See Dealings between Attorney and Client. 
 
 Information and Belief — 
 
 See Appearance. 
 
 Inherent Fourers — 
 
 See Courts. 
 
 Injunctions — 
 
 Adversely to client, right of court to restrain attorney from acting, 318. 
 Attorney-general, right to enjoin enforcement of unconstitutional statute 
 
 by, 1147. 
 Bond in injunction suit, authority of attorney to execute, 355. 
 Counsel fees, allowance of in action on injunction bond, 856. 
 
1428 INDEX. 
 
 [References are to pages.] 
 INJUNCTIONS ~ continued. 
 
 Lien on restraining order, right of attorney to, 1032. 
 
 Service on attorney of bill for injunction against prosecuting action, 469. 
 
 Inns of Court — 
 Definition of, 5. 
 
 Inqnisition — 
 
 Power of attorney to waive inquisition by stipulation, 482. 
 
 Insanity — 
 
 Insanity of client as terminating relation, 236. 
 
 Right of attorney to compensatiou for services rendered to insane person, 
 
 719. 
 Right of attorney to express opinion regarding sanity of client, 171. 
 Right to charging lien for services rendered to insane person, 9D2. 
 
 Insolvency ^ 
 
 See Banks. 
 
 Inspection of Records — 
 
 See Records. 
 
 Instructions — 
 
 See Claims; Executions; Liability of Attorneys. 
 
 Insurance — ' 
 
 Attorney's retaining lien as attaching to insurance policy, 1036. 
 Right of attorney of state insurance department to act for insurance 
 company, 311. 
 
 Insnrer — 
 
 Attorney not guarantor or insurer, 551. 
 
 Integrity of Court — 
 
 See Disbarment. 
 
 Interest — 
 
 Mortgages, see that title. 
 
 Recovery of interest in action by attorney for compensation, 062. 
 
 Interference vritb \Kritnesses — 
 
 See Disbarment. 
 
 Interpreters — 
 
 Communication made through interpreter as privileged, 172, 178. 
 
 Interrention — 
 
 Amicus curiae, see that title. 
 
 Enforcement of attorney's lien by intervention in proceeding for revival 
 of judgment, 1073. 
 
INDEX. 1429 
 
 [References are to pages.] 
 
 Intimidation — 
 
 See Disbarment. 
 
 Intosicating Iiiqnors — 
 
 Intoxicating liquors, illegal sale of as groiind for disbarment, 1266. 
 
 Investments — 
 
 Liability of attorney for loss occasioned by investment of funds for client, 
 558. 
 
 Irregularities — 
 
 See Stipulations. 
 
 Jails — 
 
 See Debtor and Creditor; Prisona. 
 
 Joinder of Parties — 
 
 See Parties. 
 
 Joint Debtors — 
 
 Release of joint debtor, authority of attorney witb respect to, 409. 
 
 Joint Parties — 
 
 See Compensation; Process. 
 
 Jndges — 
 
 Communication to' judge as privileged, 173. 
 
 Disbarmfent, see that title. 
 
 Prohibition of clerk of judge from practicing before bim. 111. 
 
 Prohibition of judge from practicing law. 111. 
 
 Prohibition of partner of judge from practicing before bim, 111, 324. 
 
 Prosecuting attorneys, see that title. 
 
 Qualification of judge to sit in disbarment proceeding, 1305. 
 
 Stipulations, see that title. 
 
 Judgments — 
 
 Action on judgment in another jurisdiction, authority of attorney to 
 
 bring, 505. 
 Appearance — 
 
 Effect of unauthorized appearance of attorney resulting in entry 
 
 of judgment, 439. 
 Presumption as to authority of attorney to appear after judgmeut, 
 
 418. 
 Sufficiency of objection to authority of attorney to appear made after 
 
 final judgment, 431. 
 Validity of domestic judgment procured by virtue of unauthorized 
 
 appearance of attorney, 442. 
 Validity of foreign judgment procured by virtue of unauthorized 
 
 appearance of attorney, 445. 
 
1430 INDEX. 
 
 [References are to pages.] 
 JUDGMENTS — continued. 
 Assignment or sale — 
 
 Assignment of judgment to counsel as affecting right of setoff, 1056. 
 Authority of attorney to accept assignment of judgment in payment 
 
 of client's claim, 393. 
 Authority of attorney to assign client's judgment, 497. 
 Authority of attorney to sell client's judgment, 497. 
 Ratification by client of assignment of judgment, 376. 
 Bond talten in payment of client's judgment, authority of attorney to 
 
 transfer, 360. 
 Champerty, see Champerty, Barratry, and Maintenance. 
 Compromise of judgment, authority of attorney to make, 499. 
 Confession — 
 
 Authority of attorney to confess judgment for client, 492. 
 Liability of attorney to client for loss occasioned by confessing judg- 
 ment, 566. 
 Presumption as to authority of attorney to confess judgment for 
 client, 493. 
 Default — 
 
 Authority of attorney to consent to opening of judgment by default, 
 
 498. 
 Right of disbarred or suspended attorney to move to open default 
 judgment, 1175. 
 Disbarment, see that title. 
 Enforcement generally — 
 
 Authority of attorney to employ all lawful means to porserve and 
 
 enforce judgment, 504. 
 Authority of attorney to enter into agreement in connection with 
 
 enforcement of judgment, 507. 
 Duty and liability of attorney to client with respect to enforcement 
 
 of judgment, 567, 568. 
 Instruction by attorney as to enforcement of execution as binding 
 client, 505. 
 Entry — 
 
 Authority of attorney after entering of judgment, 250. 
 Authority of attorney to agree that judgment shall be rendered on 
 
 pleadings, 488. 
 Authority of attorney to consent to entry of judgment or decree, 494, 
 
 495. 
 Duty and liability of attorney to client with respect to entering 
 
 judgment, 566. 
 Liability of attorney for permitting judgment to be recovered against 
 
 client, 567. 
 Eight of client to proceed summarily against attorney to prevent 
 entry of judgment against client, 611. 
 
INDEX, 1431 
 
 [References are to pages.] 
 JUDGMENTS — continued. 
 Error — 
 
 Authority of attorney to agree to correction of error in judgment, 499. 
 
 Authority of attorney to assent to correction of clerical error in 
 judgment reducing amount recoverable, 397. 
 Execution — 
 
 Authority of attorney to give indemnity to secure levy under execu- 
 tion, S03, 505. 
 
 Authority, of attorney to enforce judgment by issuing alias execution, 
 505. 
 
 Authority of attorney to enforce judgment by issuing body execution, 
 505. 
 
 Authority of attorney to issue execution on judgment, 502. 
 
 Authority of attorney to receive payment of money collected on 
 execution, 503. 
 
 Authority of attorney to stay execution in favor of. client, 508. 
 Fraudulent debtors' act, authority of attorney to enforce judgment by 
 
 instituting proceedings under, 505. 
 Lien of attorney — 
 
 Effect on attorney's lien of reversal of judgment on appeal, 1033. 
 
 Enforcement of attorney's lien against judgment, 1086. 
 
 Enforcement of attorney's lien by intervention in proceeding for re- 
 vival of judgment, 1073. 
 
 Enforcement of attorney's lien by motion to set aside satisfaction 
 of judgment, 1063. 
 
 Enforcement of attorney's lien by order on sheriff or assignee of 
 judgment to pay over fund, 1072. 
 
 Enforcement of attorney's lien by taking judgment by default, 1074. 
 
 Enforce of judgment recovered in independent action to enforce 
 attorney's lien, 1085. 
 
 Extent of attorney's charging lien on judgment, 1033. 
 
 Nature of order entered in proceeding to enforce attorney's lien, 1070. 
 
 Revival of judgment by other attorney as divesting charging lien, 
 1002. 
 
 Eight of attorney to charging lien on judgment or decree, 1029. 
 
 Eight of attorney to lien as affected by assignment of judgment, 
 1051. 
 
 Eight of attorney to lien on award of arbitrator, 1032. 
 
 Eight of attorney to lien on judgment as affected by nature of judg- 
 ment, 1032. 
 
 Eight of attorney to lien on judgment for tort, 1032. 
 
 Eight of attorney to lien on judgment in eminent domain proceed- 
 ing, 1032. 
 
 Right of attorney to lien on judgment in foreclosure suit, 1032. 
 
 Right of attorney to lien on judgment in proceeding to probate wil', 
 1032. 
 
.1432 INDEX. 
 
 [References are to pages.] 
 JUDGMENTS — contimied. 
 
 Lien of attorney — continued. 
 
 Eight of attorney to lien on judgment in special proceeding, 1032. 
 Right of attorney to lien on judgment or decree for alimony, 1034. 
 Right of attorney to lien on judgment recovered in bastardy pro- 
 ceeding, 1032. 
 Eight of attorney to lien on judgment to recover fine, 1032. 
 Eight of attorney to lien on restraining order, 1032. 
 Eight to lien on judgment in proceeding for enforcement of lien, 
 
 1032. 
 Setoff of one judgment against another as affecting attorney's lien, 
 1054. 
 New trial, authority of attorney to agree to, 498. 
 Payment or satisfaction — 
 
 Authority of attorney to accept less than amount due on judgment 
 
 in- favor of client, 396. 
 Authority of attorney to enter remittitur, 498. 
 Authority of attorney to receive payment of judgment, 362, 500. 
 Authority of attorney to satisfy judgment in favor of client, 500. 
 Delegation by attorney of authority to receive payment of judgment, 
 
 372. 
 Ratification by client of satisfaction of judgment by attorney, 376, 
 
 502. 
 Ratification of authority of attorney to satisfy judgment by death 
 of client, 501. 
 Receiver, authority of attorney to enforce judgment by applying for ap- 
 pointment of, 505. 
 Release — 
 
 Authority of attorney to extend time for release of judgment in 
 
 ejectment, 368. 
 Authority of attorney to release judgment, 409, 410, 499. 
 Revival of judgment, authority of attorney to sue for, 505. 
 Sale of attached property, authority of attorney to enforce judgment 
 
 by moving for order for, 506. 
 Sale of judgment, see supra, this title, Assignment or Sale. 
 Satisfaction, see supra, this title. Payment or Satisfaction. 
 Substitutioii of attorney after judgment, 257. 
 Summary proceeding — 
 
 Nature and enforcement of order in summary proceeding, 622. 
 Eight of attorney to plead entry of judgment against him as defense 
 in summary proceeding, 620. 
 Supplementary proceedings, authority of attorney to enforce judgment 
 
 by instituting, 505. 
 Suspension of proceedings on judgment, authority of attorney to bind 
 client to, 358. 
 
ij^DEX. 1433 
 
 [References are to pages.] 
 JUDGMENTS — continued. 
 Vacation — 
 
 Authority of attorney to vacate judgment entered in favor of client, 
 
 498. 
 Liability of attorney to client for permitting judgment to be vacated 
 or opened, 567. 
 Winding up proceedings against corporation, authority of attorney to 
 
 enforce judgment by presenting petition in, 505. 
 Writ of seizure and sale, authority of attorney to enforce judgment by 
 applying for, 505. 
 
 Judicial Functions — 
 
 See Courts. 
 
 Judicial Ifotice — 
 
 Judicial notice of who are practicing attorneys, 13. 
 
 Judicial Officers — 
 
 Attorney as judicial officer, 17. 
 
 Judicial Sales — 
 
 Right of attorney to purchase at judicial or other private sale, 295. 
 
 Jurisconsults — 
 
 Roman jurisconsults, 3. 
 
 Jury — 
 
 Exemption of attorney from jury service, 114. 
 
 Interference with juror as ground for disbarment, 1243. 
 
 Jury trial, authority of attorney to waive, 487. 
 
 Jury trial in disbarment proceeding, right to, 1305. 
 
 Jury trial to determine amount due in proceeding to enforce attorney's 
 
 lien, 1069. 
 Meaning of statute exempting "practicing attorneys" from jury duty, 13. 
 Withdrawal of juror, authority of attorney to agree to, 488. 
 
 Justices of the Peace — 
 
 Advice of justice of the peace as defense in action for malicious prose- 
 cution, 650. 
 Jurisdiction of justices court to suspend or disbar attorney, 1178. 
 Prohibition of justice of the peace from practicing in county. 111. 
 Right of unlicensed person to practice in court not of record, 30. 
 
 King's Counsel — 
 
 Appointment from among barristers, 6. 
 
 Knourledge — 
 
 Notice to attorney as imputed to client, 266. 
 
1434 INDEX. 
 
 [References are to pages.] 
 Laborer — 
 
 Attorney as employee having claim for labor and services, 14. 
 
 Laches — ' 
 
 Laches as ailecting client's right to claim benefit of purchase by attorney, 
 
 306. 
 Laches as bar to prosecution of disbarment proceeding, 1299. 
 Laches as defense to proceeding to recover property conveyed to attorney, 
 
 292. 
 Laches as ratification of act of attorney, 380. 
 
 Land — 
 
 Authority of attorney to accept land in payment of client's claim, 392. 
 Compensation, see that title. 
 Real property, see that title. 
 
 Landlord and Tenant — 
 
 Authority of attorney with respect to leases, 358. 
 Retaining lien of attorney as attaching to lease, 1036. 
 
 Larceny — 
 
 Larceny as ground for disbarment, 1265. 
 
 Law — 
 
 See Actions and Proceedings; Compensation; Ignorance. 
 
 Lanr Office — 
 
 Study in law office as affecting qualification for admission to bar, 60. 
 
 Law Partnership — 
 
 See Partnership. 
 
 La-w Schools — 
 
 Columbia law school, right of graduate of to practice without examina- 
 tion, 71. 
 
 Examination of law school graduates for admission to bar, necessity of, 
 70. 
 
 Hastings college of law, right of graduate of to practice without exam- 
 ination, 71. 
 
 Study in law school as affecting qualifications for admission to bar, 59. 
 
 Law Students — 
 
 Communication made to law student as privileged, 173. 
 
 Lawyer — 
 
 Meaning of term, 18. 
 
 Leases — 
 
 See Landlord and Tenant. 
 
INDEX. 1435 
 
 [References are to pages.] 
 
 Iiegacies — 
 
 Eight of attorney to lien on legacy due client, 1019. 
 
 Xegal Proceedings ^ 
 
 See Compensation. 
 
 liCgal Tender — 
 
 Legal tender, authority of attorney to accept payment in other than, 392. 
 
 Iiegatees — 
 
 Evidence of employment by one of several heirs or legatees in action by 
 attorney for compensation, 897. 
 
 Iiegislatnre — 
 
 Admission to practice as judicial or legislative function, 31. 
 Appointment of member of legislature as assistant prosecuting attorney, 
 
 1103. 
 Disbarment, see that title. 
 Bight of attorney to recover for services rendered before legislative body, 
 
 652. 
 Eight of legislature to prescribe qualifications for admission to bar in 
 
 Indiana, 59. 
 Eight of legislature to regulate admission to practice, 33. 
 
 Iietters — 
 
 See Disbarment. 
 
 Iiiability of Attorney — 
 
 Appeal or error, duty and liability of attorney to client with respect to 
 
 prosecuting, 569. 
 Appearance, liability of attorney to client for unauthorized, 517. 
 Assistant, liability of attorney for act of, 522. 
 Assumpsit against attorney for negligence, right of client to maintain, 
 
 582. 
 Attachments, duty and liability of attorney to client vfith respect to, 568. 
 Bill in equity against attorney for negligence, right of client to maintain, 
 
 582. 
 Burden of proof in action against attorney for negligence, 584. 
 Clerk, liability of attorney for act of, 522. 
 Collection of claims — - 
 
 Accounting as to money collected by attorney, right of client to, 
 595, 600. 
 
 Account rendered, right of client to maintain action for against at- 
 torney for money collected, 599. 
 
 Action against attorney for money collected, right of client to bring, 
 596. 
 
 Action against attorney for money collected, right of third person to 
 bring, 597. 
 
1436 INDEX. 
 
 [References are to pages.] 
 LIABILITY OF ATTORNEY — com«iM«ed. 
 Collection of claims — continued. 
 
 Assumpsit, right of client to maintain against attorney for monev 
 
 collected, 599. 
 Bill of particulars, right of attorney to in action by client for money 
 
 collected, 601. 
 Character of money collected, duty and liability of attorney to client 
 
 with respect to, 572. 
 Contract, action by client against attorney for money collected as 
 
 resting in, 599. 
 Criminal liability of attorney to client for money collected, 600. 
 Damages recoverable from attorney in action by client for money col- 
 lected, 594, 607. 
 Defenses generally in action by client against attorney for money 
 
 collected, 593, 602. 
 Demand, necessity of making prior to bringing suit against attorney 
 
 for money collected, 598. 
 Depreciated money, liability of attorney for accepting in payment of 
 
 claim, 571. 
 Discretion, liability of attorney with respect to collection of claims 
 
 where he is authorized to exercise, 578. 
 Duty and liability of attorney to client with respect to collecting 
 
 claims, 569. 
 Failure to pay over proceeds of claim collected, liability of attorney to 
 
 client for, 574. 
 Form of action against attorney for money collected, 599. 
 Instructions of client with reference to collection of claim, duty and 
 
 liability of attorney to follow, 577. 
 Loss of client's money deposited in bank, liability of attorney for, 572, 
 
 573. 
 Money had and received, right of client to maintain action for against 
 
 attorney to recover money collected, 599. 
 Pleading in action by client against attorney for negligence in col- 
 lection of claim, 591, 600. 
 Proof essential to establish liability of attorney for money collected, 
 
 591, 601. 
 Question of law or fact, liability^ of attorney in action for moji y 
 
 collected as, 602. 
 Retention of fees from sum collected for client, right of attorney with 
 
 respect to, 577. 
 Set-off or counterclaim, right of attorney to establish in action bv 
 
 client for money collected, 607. 
 Statute of limitations, running of against action by client against 
 
 attorney for money collected, 594, 604. 
 Summary proceeding to recover money collected, see infra, this title. 
 
 Summary Proceedings. 
 Tort, liability of attorney in for money collected, 600. 
 
INDEX. 1437 
 
 [References are to pages.] 
 LIABILITY OF ATTORNEY — co»»fi»«e(J. 
 
 Conducting litigation, duty and liability of attorney to client in, 563. 
 Confession of judgment, liability of attorney to client for loss occasioned 
 
 by, 566. 
 Compromise or release, liability of attorney to client for unauthorized, 
 
 518. 
 Costs — 
 
 Enforcement of liability of attorney for costs, 545. 
 
 Liability of attorney for costs because of beneficial interest in litiga- 
 tion, 542. 
 
 Liability of attorney for costs because of indorsement of writ, 541. 
 
 Liability of attorney for costs generally, 536. 
 
 Liability of attorney for costs in case of misconduct or negligence, 
 536. 
 
 Liability of attorney representing nonresident litigants for costs, 
 539. 
 Damages recoverable in action by client against attorney for negligence, 
 
 589. 
 Defenses generally in action by client against attorney for negligence, 
 
 586. 
 Duty and liability of attorney to client generally, 513. 
 Enforcement of judgment, duty and liability of attorney to client with 
 
 respect to, 567, 568. 
 Entry of judgment against client, liability of attorney for permitting. 
 
 567. 
 Entry of judgment, duty and liability of attorney to client with respect 
 
 to, 566. 
 Erroneous advice to client, liability of attorney for damage resulting 
 
 from, 556. 
 Evidence in action by client against attorney for negligence, admissibility 
 
 of, 586. 
 Exception to erroneous ruling, liability of attorney for failure to take, 
 
 566. 
 Expenses — 
 
 Liability of attorney for fees and expenses of litigation, 543. 
 
 Presumption as to liability of attorney to incur expense for client, 
 544. 
 Failure to advise client, liability of attorney for, 557. 
 Failure to defend suit, liability of attorney to client for, 563. 
 Failure to institute suit, liability of attorney to client for, 563. 
 Form of action against attorney for negligence, 582. 
 Fraud — 
 
 Burden of proof in action by client against attorney for fraud, 581. 
 
 Liability of attorney for fraud generally, 514, 581. 
 
 Running of statute of limitations against action by client against 
 attorney for fraud, 581. 
 
1438 INDEX. 
 
 [References are to pages.] 
 LIABILITY OF ATTORNEY — eoreitwed. 
 Guarantor or insurer, attorney not, 551. 
 
 Ignorance of law, liability of attorney for loss resulting from, 553. 
 Imputing negligence of attorney to client, 561. 
 Instructions, liability of attorney to client as dependent on, 517. 
 Investment of funds for client, liability of attorney for loss occasioned 
 
 by, 558. 
 Liability of client, see that title. 
 Mistake, liability of attorney for, 552. 
 Mitigation of damages, evidence admissible in, in action by client against 
 
 attorney for negligence, 590. 
 Negligence generally, liability of attorney for, 547. 
 
 Papers of client, liability of attorney to client with reference to, 515. 
 Partner, liability of firm to client for acts of, 519. 
 
 Pleadings, duty and liability of attorney to client with respect to prepara- 
 tion and filing of, 564. 
 Pleadings in action against attorney for negligence, 583. 
 Presumptions in action by client against attorney for negligence, 585. 
 Punitive damages as recoverable in action by client against attorney for 
 
 negligence, 590. 
 Question of law or fact, negligence of attorney as, 551, 586. 
 Release by client of liability of attorney, 516. 
 
 Security taken for client, liability of attorney for loss occasioned by in- 
 sufficiency of, 560. 
 Skill, care and prudence, liability of attorney to client as dependent on, 
 
 547. 
 Statute of limitations as defense in action by client against attorney for 
 
 negligence, 588. 
 Substitute, liability of attorney to client for act of, 521. 
 Summary proceedings — 
 
 Agent of client, right of to institute summary proceeding against 
 attorney, 617. 
 
 Another suit pending, right of attorney to plead as defense in sum- 
 mary proceeding, 620. 
 
 Assignment of fund, right of attorney to set up as defense in sum- 
 mary proceeding, 620. 
 
 Attachment to enforce order in summary proceeding, issuance of, 
 623. 
 
 Compensation, right of attorney to set up claim for as defense in 
 summary proceeding, 619. 
 
 Contempt, enforcement of order in summary proceeding by prosecu- 
 tion for, 624. 
 
 Counterclaim, assertion of as affecting right to summary proceedings 
 against attorney, 612. 
 
 Defenses in summary proceeding against attorney, 619. 
 
INDEX. 1439 
 
 [Eeferences are to pages.] 
 LIABILITY OF ATTOmfSEY — continued. 
 Summary proceedings — continued. 
 
 Delivery of documents, right of client to proceed summarily against 
 attorney to enforce, 610. 
 
 Disbarment, right of attorney to plead as defense in summary proceed- 
 ing, 621. 
 
 Entry of judgment against client, right of client to proceed sum- 
 marily against attorney to prevent, 611. 
 
 Entry of judgment against him, right of attorney to plead as de- 
 fense in summary proceeding, 620. 
 
 Evidence in summary proceeding against attorney, admissibility and 
 suflSciency of, 617. 
 
 Executor or administrator of client, right of to institute summary 
 proceeding against attorney, 617. 
 
 Finding of court in summary proceeding against attorney, presump- 
 tion as to, 619. 
 
 Fine, enforcement of order in summary proceeding by, 624. 
 
 Garnishment of fund, right of attorney to set up as defense in sum- 
 mary proceeding, 620. 
 
 Hearing of summary proceeding against attorney, 618. 
 
 Imprisonment, enforcement of order in summary proceeding by, 624. 
 
 Jurisdiction of summary proceeding against attorney, under what 
 circumstances court v?ill entertain, 611. 
 
 Legal remedy, right of attorney to plead as defense in summary pro- 
 ceedings, 621. 
 
 Merit and good faith, necessity for showing of in defending sum- 
 mary proceeding, 621. 
 
 Method of instituting summary proceeding against attorney, 615. 
 
 Money collected, right of client to proceed summarily against at- 
 torney for recovery of, 608. 
 
 Negligence, right of client to proceed summarily against attorney for 
 injury occasioned by, 611. 
 
 Order in summary proceeding, nature and enforcement of, 622. 
 
 Parties to summary proceeding against attorney, 617. 
 
 Partnership, right to entertain summary proceedings against on ac- 
 count of act of single partner, 613. 
 
 Professional relation, existence of as condition precedent to summary 
 proceeding against attorney, 613. 
 
 Purpose other than to recover money collected, right of client to 
 proceed summarily against attorney for, 610. 
 
 Reference in summary proceeding against attorney, right to and effect 
 of, 618. 
 
 Removal from office, enforcement of order in summary proceeding by, 
 624. 
 
 Resignation of office of attorney, right of attorney to defend sum- 
 mary proceeding on ground of, 621. 
 
1440 INDEX. 
 
 [References are to pages.] 
 LIABILITY OP ATTOB.NEY — continued. 
 Summary proceedings — continued. 
 
 Review of summary proceeding against attorney, 619. 
 
 Security, right of attorney to plead giving of as defense in summary 
 
 proceeding, 621. 
 Set-oflF, right of attorney to plead as defense in summary proceeding, 
 
 620. 
 Statute of limitations, right of attorney to plead as defense in sum- 
 mary proceeding, 620. 
 Unauthorized act of attorney, right of client to proceed summarily 
 against attorney for injury caused by, 611. 
 Survival of action by client against attorney for negligence, 591. 
 Testimony by incompetent witness, liability of attorney for permitting, 
 
 566. 
 Third person — 
 
 Acting in good faith, liability of attorney to third person as de- 
 pendent on, 530. 
 Fraudulent or tortious act, liability of attorney to third person for, 
 
 523. 
 Garnishee of funds of client, liability of attorney as, 529. 
 Mistake, liability of attorney to third person for money paid to 
 
 him by, 527. 
 Moneys received on account of third person, liability of attorney for, 
 
 528. 
 Negligence, liability of attorney to third person for, 529, 
 Overpayment made to him for client, liability of attorney to third 
 person for, 527. 
 Trespass against attorney for fraud, right of client to maintain, 582. 
 Trial, duty and liability of attorney to client with respect to conduct of, 
 
 565. 
 Unauthorized acts, liability of attorney generally for, 516, 580. 
 Vacation of judgment, liability of attorney to client for permitting, 567. 
 Written instrument, liability of attorney for failure to record, 560. 
 Written instrument, liability of attorney for negligence in preparing, 560. 
 
 Iiiability of Client — 
 
 Attachment by attorney, liability of client for, 532. 
 Damages recoverable from client for improper act of attorney, 532. 
 Execution issued by attorney, liability of client for, 532. 
 False imprisonment by attorney, liability of client for, 531. 
 Fraudulent act of attorney, liability of client for, 532. 
 Order of sale, liability of client for act of attorney in wrongfully obtain- 
 ing, 532. 
 Pleading, liability of client for statements in, 533. 
 Seizure of property by attorney, liability of client for, 532. 
 Third person, liability of client to for act of attorney, 531. 
 Trespass by attorney, liability of client for, 531. 
 
INDEX. 1441 
 
 [References are to pages.] 
 Ubel and Slander — 
 
 Actionable statements against attorney, 135. 
 
 Canada, privilege of attorney in with respect to prosecution for libel or 
 
 slander, 123. 
 Communications between attorney and client as privileged, 123. 
 Disbarment, see that title. 
 England, privilege of attorney in with respect to prosecution for libel 
 
 or slander, 123. 
 Judicial proceeding, privilege of attorney with respect to language used 
 
 in, 118. 
 Libel or slander of attorney generally, 133. 
 Nonactionable statements against attorney, 140. 
 Pleading, liability of client for statements in, 533. 
 Privileged nature of communications between attorney and client, see 
 
 Privileged Communications. 
 Privilege of attorney from prosecution for libel or slander, 118. 
 
 Xlcense — 
 
 Canada, right of unlicensed person to "practice" as solicitor in, 28. 
 Collection of occupation or license tax imposed on attorneys, 103. 
 Compensation — 
 
 Failure to pay tax as affecting right to compensation, 104. 
 
 Eight of unlicensed person to compensation for services not neces- 
 sarily rendered by attorney, 27. 
 
 Eight of unlicensed person to recover compensation for services, 26. 
 Disbarment, see that title. 
 Municipal taxation of attorneys, 101. 
 Nonresident attorney, taxation of, 102. 
 
 Power to impose occupation tax or license fee on attorneys, 96. 
 Punishment and penalties for, practicing without license, 104. 
 Eetired attorney as within statute requiring attorneys to obtain license, 
 
 13. 
 Status of proceedings by, unlicensed person, 109. 
 Statutory provisions forbidding, unlicensed practice, 30. 
 What constitutes, practicing without license, 106. 
 
 Uen — 
 
 Authority of attorney to release hen, 410. 
 Lien of attorney, see that title. 
 
 Uen o£ Attorney^ 
 
 Account, attorney's lien as attaching to, 1038. 
 
 Administrative board, right to lien for services rendered before, 992. 
 
 Administrator, right of attorney to lien on funds in hands of or owing 
 
 to, 1017. 
 Adverse party, right of attorney to lien on money in hands of, 1016. 
 Against whom enforcement of attorney's lien may be had, 1062, 1068. 
 
 Attorneys at Law Vol. II — 91. 
 
1442 INDEX. 
 
 [References are to pages.] 
 LIEN OF ATTORNEY — co»i.ti««ed. 
 
 Alimony, right of attorney to lien on judgment or decree for, 1034. 
 Amount of recovery in independent action to enforce attorney's lien, 
 
 1085. 
 Appeal bond, enforcement of attorney's lien against sureties on, 1086, 
 Appeal, enforcement of attorney's lien by, 1073. 
 Appeal from order in proceeding to enforce attorney's lien, 1070. 
 Appellate court, enforcement of attorney's lien in, 1060, 1073. 
 Appropriation by legislature, right of attorney to lien on, 1020. 
 Assignee of attorney, right of to enforce lien, 1061. 
 Assignee of client, enforcement of attorney's lien against, 1062. 
 Assignment of cause of action, right of attorney to lien as affected by, 
 
 1052. 
 Assignment of charging lien, right of attorney to make, 1005. 
 Assignment of judgment, right of attorney to lien as affected by, 1051. 
 Associate counsel, enforcement of attorney's lien against, 1062. 
 Associate or assistant counsel, right of to lien, 983. 
 Attached funds, right of attorney to lien on, 1019. 
 Award of arbitrator, right of attorney to lien on, 1032. 
 Bail bond, enforcement of attorney's lien against surety on, 1086. 
 Bank book, attorney's lien as attaching to, 1036. 
 Bastardy proceeding, right of attorney to lien for services rendered in, 
 
 992. 
 Bastardy proceeding, right of attorney to lien. on judgment recovered in, 
 
 1032. 
 Bond, attorney's lien as attaching to, 1036. 
 Cause of action — 
 
 Accrual of attorney's lien on client's cause of action, 1014. 
 
 Extent of attorney's lien on client's cause of action, 1012. 
 
 Right of attorney to lien on client's cause of action for personal 
 tort, 1014. 
 
 Right of attorney to lien on client's cause of action generally, 1009. 
 
 Validity of statute giving attorney lien on cause of action, 1010. 
 Charging lien generally — 
 
 Basis of charging lien, 978. 
 
 Charging lien as enforceable only on behalf of attorney, 981. 
 
 Charging lien defined and distinguished, 975. 
 
 Nature of charging lien, 978. 
 
 Origin of charging lien, 976. 
 
 Right to assign charging lien, 975. 
 
 Right to charging lien as confined to attorney of record, 982. 
 
 Statutory provisions relating to charging liens, 979. 
 Check, attorney's lien as attaching to, 1036. 
 Compensation, disbursements, and expenses due him, attorney's lien as 
 
 extending to, 988. 
 
INDEX. 1443 
 
 [References are to pages.] 
 LIEN OF ATTORNEY — cojitinued. 
 
 Compensation due him In particular suit or proceeding, attorney's lien 
 
 as limited to, 989. 
 Contract between attorney and client for compensation as assignment, 
 
 981. 
 Contract between attorney and client for compensation as equitable lien, 
 
 980. 
 Corporation, right of to claim attorney's lien, 982. 
 Court of record, lien of attorney as accruing only for services rendered in, 
 
 992. 
 Courts wherein enforcement of attorney's lien may be had, 1059. 
 Decedent's estate, right of attorney to lien on funds collected for, 1019. 
 Decedent's estate, right of attorney to lien on proceeds of sale of, 1019. 
 Deed, attorney's lien as attaching to, 1036. 
 
 Default, enforcement of attorney's lien by taking judgment by, 1074. 
 Defendant in litigation, enforcement of attorney's lien against, 1062. 
 Defendant's attorney, right of to lien, 992. 
 Defendant's attorney, right of to lien where set-off or counterclaim is 
 
 pleaded, 993. 
 Defenses in independent action to enforce attorney's lien, 1084. 
 Dismissal of litigation by client, effect of on attorney's lien, 1049. 
 Distributive share of estate due client, right of attorney to lien on, 
 
 1019. 
 Eminent domain proceeding, right of attorney to lien on judgment in, 
 
 1032. 
 Enforcement of attorney's retaining lien generally, 1086. 
 Evidence in indeplendent action to enforce attorney's lien, 1083. 
 Execution in his hands, attorney's lien as attaching to, 1037. 
 Execution to enforce attorney's lien, issuance of, 1071. 
 Executor or administrator, right to lien for services rendered to, 992. 
 Executor, right of attorney to lien on funds in hands of or owing to, 
 
 1017. 
 Expense attached to enforcement of lien, necessity that attorney bear 
 
 share of, 1059. 
 Extent of retaining lien, 993. 
 
 Federal court, enforcement of attorney's lien in, 1060. 
 Fine, right of attorney to lien on judgment for recovery of, 1032. 
 Following fund to which it has attached, attorney's charging lien as, 
 
 1023. 
 Foreclosure suit, right of attorney to lien on judgment in, 1032. 
 Homestead, right of attorney to lien on, 1028. 
 Incidental services, attorney's lien as covering, 990. 
 Independent action at law, enforcement of attorney's lien by, 1079. 
 Independent action in equity, enforcement of attorneys' lien by, 1081. 
 Infant, right to lien for services rendered to, 991. 
 
1444 INDEX. 
 
 [Beferences are to psiges.] 
 MEN OF ATTORNEY — coTtttmted. 
 
 Insane person, right to lien for services rendered to, 992. 
 
 Insurance policy, attorney's lien as attaching to, 1036. 
 
 Intervention in proceeding for revival of judgment, enforcement of attor^ 
 
 ney's lien by, 1073. 
 Judgments generally — 
 
 Enforcement of attorney's lien against judgment, 1086. 
 
 Enforcement of judgment recovered in independent action to enforce 
 attorney's lien, 1085. 
 
 Extent of attorney's lien on judgment, 1033. 
 
 Eight of attorney to lien on judgment as affected by nature of judg- 
 ment, 1032. 
 
 Eight of attorney to lien on judgment or decree generally, 1029. 
 Jury trial to determine amount due in proceeding to enforce attorney's 
 
 lieu, 1069. 
 Land — 
 
 Necessity that land must have been "recovered" in litigation in order 
 to entitle attorney to lien thereon, 1026. 
 
 Right of attorney to lien on land by virtue of contract, 1025. 
 
 Eight of attorney to lien on land by virtue of statute, 1025. 
 
 Eight of attorney to lien on land in absence of statute, 1024. 
 Law governing enforcement of attorney's lien, 1061. 
 Lease, attorney's lien as attaching to, 1036. 
 Legacy due client, right of attorney to lien on, 1019. 
 Lien, right to lien on judgment in proceeding for enforcement of, 1032. 
 Loss of lien, see infra, this title. Waiver or Loss of Lien. 
 Married woman, right to lien for services rendered to, 991. 
 Money, attorney's lien as attaching to, 1037. 
 
 Money paid into court, right of attorney to lien on, 1021, 1022, 1023. 
 Motion to set aside satisfaction of judgment, enforcement of attorney'* 
 
 lien by, 1063. 
 Municipal court, right to lien for services rendered in, 992. 
 Municipal warrant, attorney's lien as attaching to, 1036. 
 Note, attorney's lien as attaching to, 1036. 
 Notice of lien — 
 
 Amount and nature of claim, necessity that notice of attorney's lien 
 state, 1000. 
 
 Filing or recording attorney's lien, necessity of, 999. 
 
 Necessity that attorney give notice of lien, 995. 
 
 Presumption as to notice of attorney's lien, 998. 
 
 Sufficiency of notice of attorney's lien generally, 997. 
 
 Sufficiency of notice of attorney's lien when given to person's agent, 
 1001. 
 
 Sufficiency of notice of lien when given to person's attorney, 1001. 
 
 To whom notice of attorney's charging lien should be given, 1001. 
 
 Writing, necessity that notice of attorney's lien be in, 1000. 
 
INDEX. 1445 
 
 [References are to pages.] 
 UEN OP ATTORNEY — comtMiued. 
 
 Order entered in proceeding to enforce attorney's lien, nature of, 1070. 
 Order on sheriff or assignee of judgment to pay over fund, enforcement 
 
 of attorney's lien by, 1072. 
 Parties to independent action to enforce attorney's lien, 1082. 
 Parties to litigation, right of to enforce attorney's lien, 1062. 
 Parties to petition for determination and enforcement of attorney's lien, 
 
 1068. 
 Partition proceedings, right of attorney to lien on land for fees in, 1028. 
 Partnership, right of partner to enforce lien in favor of, 1061. 
 Permission to prosecute original suit to judgment in order to enforce lien, 
 
 denial of, 1078. 
 Personal property, right of attorney to lien on, 1029. 
 Petition for determination and enforcement of attorney's lien in original 
 
 action, suflSciency of, 1067. 
 Pleading in independent action to enforce attorney's lien, 1083. 
 Possession, attorney's lien as attaching to all property in, 1035. 
 Printed record on appeal, attorney's lien as attaching to, 1037. 
 Priority of lien — 
 
 As against attachment proceeding, 986. 
 
 As against creditor armed with process, 986. 
 
 As against garnishment proceeding, 986. 
 
 As against secured creditor, 986. 
 
 As against unsecured creditors, 985. 
 
 Generally, 984. 
 
 In Georgia, 987. 
 Probate of will, right of attorney to lien on judgment in proceeding for, 
 
 1032. 
 Procedure in prosecuting original suit to judgment for enforcement of 
 
 attorney's lien, 1076. 
 Professional services, lien of attorney as accruing only for, 991. 
 Prosecuting original suit to judgment, right of attorney to enforce lien 
 
 by, 1074. 
 Provisional remedies or securities given in action, enforcement of attor- 
 ney's lien against, 1086. 
 Public or government funds, right of attorney to lien on, 1020. 
 Real property, see supra, this title. Land. 
 Reference to determine amount due in proceeding to enforce attorney's 
 
 lien, 1069. 
 Replevin bond, enforcement of attorney's lien against, 1086. 
 Replevin, enforcement of attorney's lien by suit against officer for taking 
 
 insufficient bond in, 1086. 
 Representative of attorney, right of to claim lien, 982. 
 Restraining order, right of attorney to lien on, 1032. 
 
1446 INDEX. 
 
 [References are to pages.] 
 LIEN OF ATTORNEY — con/inwed. 
 Retaining lien generally — 
 
 Nature of retaining lien, 972. 
 
 Necessity that possession be consistent with lien in order that at- 
 torney's retaining lien may attach, 1037. 
 Origin of retaining lien, 971. 
 
 Possession as essential to existence of retaining lien, 973. 
 Retaining lien defined and distinguished, 970. 
 Right to assign retaining lien, 972. 
 
 Bight to compel attorney to surrender possession of papers or prop- 
 erty without payment of fees, 973. 
 Reversal of judgment on appeal, effect on attorney's lien of, 1033. 
 Right of attorney to lien generally, 969. 
 Securities, attorney's lien as attaching to, 1036. 
 Services and compensation for which attorney's lien exists, 987. 
 Set-off — 
 
 Assignment of judgment to counsel as affecting right of set-off, 1056. 
 Attorney's lien as subordinate to right of set-off by adverse party, 
 
 1053. 
 Set-off of one judgment against another as affecting attorney's lien, 
 1054. 
 Settlement of litigation — 
 
 Effect of fraudulent sale of litigation by client on attorney's lien, 
 
 1044. 
 Effect of settlement by client after judgment on attorney's lien, 
 J 1047. 
 
 Effect of settlement by client before judgment on attorney's lien 
 
 generally, 1039. 
 Effect of settlement by client on attorney's lien where attorney is 
 
 entitled to portion of recovery, 1046. 
 Effect of settlement by client pending appeal on attorney's lien, 
 
 1046. 
 Effect of settlement by client where lien rights exist, 1042. 
 Special proceeding, right of attorney to lien for services rendered in, 
 
 992. 
 Special proceeding, right of attorney to lien on judgment in, 1032. 
 State court, enforcement of attorney's lien in, 1060. 
 Statute allowing enforcement of attorney's lien in any court of competent 
 
 jurisdiction, validity of, 1061. 
 Statute, right to enforce attorney's lien as dependent on, 1059. 
 Stock, attorney's lien as attaching to shares of, 1036. 
 Substitution of attorneys, determining existence of lien in case. of, 263. 
 Substitution of attorneys, right of attorney to lien as affected by, 1051. 
 Summary determination and enforcement of attorney's lien in original 
 action generally, 1066. 
 
INDEX. 1447 
 
 [References are to pages.] 
 LIEN OF ATTORNEY — co««j»iied. 
 
 Summary jurisdiction of court to enforce attorney's lien, 1070. 
 
 Surrogate's court, enforcement of attorney's lien in, 1060. 
 
 Surrogate's court, right to lien for services rendered in, 992. 
 
 Taxable costs, attorney's lien as limited to, 987. 
 
 Tort, right of attorney to lien on judgment for, 1032. 
 
 To whom attorney's lien accrues, 981, 982. 
 
 Town order, attorney's lien as attaching to, 1036. 
 
 Trustee, right of attorney to lien on funds in hands of or owing to, 1017. 
 
 Vacation of settlement by client, enforcement of attorney's lien by, 1063, 
 
 1064, 1065. 
 Waiver or loss of lien — 
 
 Abandonment of cause, waiver of attorney's lien by, 1005. 
 
 Assignment of charging lien, right of attorney to make, 1005. 
 
 Bringing suit for compensation, waiver of attorney's lien by, 1005. 
 
 Failure of attorney to deduct fees from portion of fund collected as 
 loss of lien, 1002. 
 
 Guardian, loss of attorney's lien by appointment of, 1002. 
 
 Independent security, waiver of attorney's lien by acceptance of, 
 1004. 
 
 Receiver, loss of attorney's lien by appointment of, 1002. 
 
 Revival of judgment by other attorney as divesting lien, 1002. 
 
 Satisfaction or release of judgment, waiver of attorney's lien by, 1003. 
 
 Waiver or loss of attorney's charging lien generally, 1001. 
 
 Waiver or loss of retaining lien generally, 1006. 
 Will contest, right of attorney to lien for services rendered in, 1019. 
 Who may enforce attorney's lien, 1061. 
 
 Iiientenant Governor — 
 
 Appointment of Lieutenant Governor as assistant to prosecuting attor- 
 ney, 1103. 
 
 Iiimitation of Actions — 
 
 Compensation, statute of limitations as defense to action by attorney for, 
 
 958, 959. 
 Confession of judgment for client, power of attorney to make after debt 
 
 is barred by statute of limitations, 493. 
 Disbarment proceeding, statute of limitations as bar to prosecution of, 
 
 1299. 
 Fraud, running of statute of limitations against action by client against 
 
 attorney for, 581. 
 Lien of attorney, see that title. 
 Money collected, running of statute of limitations against action by client 
 
 against attorney for, 604. 
 Negligence in collection of claim, running of statute of limitations against 
 
 action by client against attorney for, 594. 
 
144:8 
 
 INDEX. 
 
 [Eeferenees are to pages.] 
 LIMITATION OF ACTIONS — eontmued. 
 
 Negligence, statute of limitations as defense in action by client against 
 
 attorney for, 588. 
 Summary proceeding, right of attorney to plead statute of limitations as 
 
 defense in, 620. 
 Taking case out of statute of limitations, authority of attorney with 
 
 respect to, 358. 
 Waiving statute of limitations, power of attorney with respect to, 484. 
 
 Xiitigation — 
 
 See Actions and Proceedings; Attorney-General. 
 
 Local Assessments — 
 
 See Taxation. 
 
 Iiocal Connsel — 
 
 See Authority of Attorney. 
 
 Iioss of liien — 
 
 See Lien of Attorney. 
 
 Lynching — 
 
 Lynching person as ground for disharment, 1266. 
 
 Magistrates — 
 
 Advice of magistrate as defense in action for malicious prosecution, 650. 
 Communication to magistrate as privileged, 173. 
 Power of police magistrate to disbar attorney, 1178. 
 
 Mail — 
 
 See Postal Laws; Process. 
 
 Maintenance — 
 
 See Champerty, Barratry, and Maintenance. 
 
 Malice — ' 
 
 Malicious prosecution, see that title. 
 
 Eight of client to show advice of counsel to rebut charge of malice, 626. 
 
 Malicions Prosecution — 
 
 Advice of counsel as defense in action for malicious prosecution, general 
 
 rule as to, 631. 
 Advice of counsel as establishing absence of malice or exitsence of probable 
 
 cause in action for malicious prosecution, 636. 
 Advice of person other than attorney as defense in action for malicious 
 
 prosecution, 649. 
 Complete statement of facts to counsel as necesasry to establish defense 
 
 in action for malicious prosecution, 639. 
 Detective, advice of as defense in action for malicious prosecution, 650. 
 
INDEX. 1449 
 
 [References are. to pages.] 
 MALICIOUS PEOSECUTION — continued. 
 
 Diligence to discover facts, necessity of exercising in order to establish 
 defense of advice of counsel in action for malicious prosecution, 642. 
 
 Good faith, necessity of in seeking and acting on advice of counsel in 
 order to establish defense in action for malicious prosecution, 638. 
 
 Justice of the peace, advice of as defense in action for malicious prosecu- 
 tion, 650. 
 
 Magistrate, advice of as defense in action for malicious prosecution, 650. 
 
 Ministerial officer, advice of as defense in action for malicious prosecu- 
 tion, 650. 
 
 Nature of advice received as affecting advice of counsel as defense in 
 action for malicious prosecution, 645. 
 
 Police officer, advice of as defense in action for malicious prosecution, 
 650. 
 
 Prosecuting attorney, advice of as defense in action for malicious prose- 
 cution, 649. 
 
 Qualification of attorney consulted as affecting advice of counsel as 
 defense in action for malicious prosecution, 647. 
 
 Eeason of rule as to advice of counsel as defense in action for malicious 
 prosecution, 635. 
 
 Mandamns — 
 
 Authority of attorney to procure mandamus, 453. 
 
 Mandamus to compel state attorney-general to act or decide, 1146-1147. 
 
 Review of disbarment proceeding by mandamus, 1329. 
 
 Marriage — 
 
 Right of attorney to compensation under contract designed to facilitate 
 annulment of marriage, 758. 
 
 Married Women — 
 
 Right of attorney to compensation for services rendered to married woman, 
 
 719. 
 Right to charging lien for services rendered to married woman, 991. 
 
 Marshal — 
 
 See Attorney-General. 
 
 Massachnsetts — 
 
 See Compromise. 
 
 Massacre — 
 
 Participating in massacre as ground for disbarment, 1266. 
 
 Master and Servant — 
 
 Attorney as employee having claim for labor and services, 14. 
 Communication made to employee of attorney as privileged, 172. 
 
14:50 INDEX. 
 
 [References are to pages.] 
 Master in Chancery — 
 
 Right of master in chancery to act as counsel in subsequent proceedings, 
 
 310. 
 Right of solicitor to act as special master, 310. 
 
 Matrimonial Actions — 
 
 See Husband and Wife. 
 
 Merit — 
 
 See Summary Proceedings. 
 
 Meritorious Defense — 
 
 See Compensation. 
 
 Military Service — 
 
 Exemption of attorney from military service, 114. 
 
 Ministerial Officers — 
 
 See Public Officers. 
 
 Minors — 
 
 See Infants. 
 
 Misappropriation — 
 
 See Disbarment. 
 
 Misconduct — 
 
 See Disbarment; Negligence. 
 
 Misdemeanors — 
 
 Commission of misdemeanor as ground for disbarment, 1266. 
 
 Mistake — 
 
 Admission by attorney made under mistake of facts, right of client to 
 
 relief from, 486. 
 Liability of attorney for mistake, 552. 
 Money paid to him by mistake, liability of attorney to third person for, 
 
 527. 
 Stipulation made by attorney under mistake of fact, right of client to 
 
 relief from, 486. 
 
 Mitigation of Damages — 
 
 See Damages. 
 
 Money — 
 
 Accounting as to money collected by attorney, right of client to, 595, 600. 
 Account rendered, right of client to maintain action for against attorney 
 
 for money collected, 599. 
 Action against attorney for money collected, right of client to bring, 596. 
 
INDEX. 1451 
 
 [References are to pages.] 
 MONEY — continue. 
 
 Action against attorney for money, collected, right of third person to 
 bring, 597. 
 
 Assumpsit, right of client to maintain against attorney for money col- 
 lected, 599. 
 
 Bill of particulars in action by client for money collected, right of at- 
 torney to, 601. 
 
 Character of money collected, duty and liability of attorney to client 
 with respect to, 572. 
 
 Compromise by acceptance of payment otherwise than in money, author- 
 ity of attorney in respect to, 390. 
 
 Contract, action by client against attorney for money collected as resting 
 in, 599. 
 
 Criminal liability of attorney to client for money collected, 600. 
 
 Damages recoverable from attorney in action by client for money col- 
 lected, 607. 
 
 Defenses generally in action by client against attorney for money col- 
 lected, 602. 
 
 Demand, necessity of making prior to bringing; suit against attorney for 
 money collected, 598. 
 
 Depreciated money, liability of attorney for accepting in payment of 
 claim, 571. 
 
 Distribution of money of client, authority of attorney with respect to, 
 361. 
 
 Form of action against attorney for money collected, 599. 
 
 Lien of attorney — 
 
 Adverse party, right of attorney to lien on money in hands of, 1016. 
 Appropriation by legislature, right of attorney to lien on, 1020. 
 Attached funds, right of attorney to lien on, 1019. 
 Decedent's estate, right of attorney to lien on funds collected for, 
 
 1019. 
 Decedent's estate, right of attorney to lien on proceeds of sale of, 
 
 1019. 
 Distributive share of estate due client, right of attorney to lien on, 
 
 1019. 
 Executor, administrator, or trustee, right of attorney to lien on 
 
 funds in hands of or owing to, 1017. 
 Following fund to which it has attached, attorney's lien as, 1023. 
 Legacy due client, right of attorney to lien on, 1019. 
 Money paid into court, right of attorney to lien on, 1021, 1022, 1023. 
 Public or government funds, right of attorney to lien on, 1020. 
 Retaining lien of attorney as attaching to money, 1037. 
 
 Loss of client's money deposited in bank, liability of attorney for, 572, 
 573. 
 
 Money had and received, right of client to maintain action for against 
 attorney to recover money collected, 599. 
 
1452 INDEX. 
 
 [Eeferences are to pages.] 
 MONEY — continued. 
 
 Payment of money of client to third person, authority of attorney with 
 respect to, 360. 
 
 Pleading in action by client against attorney for money collected, 600. 
 
 Proof essential to establish liability of attorney for money collected, 601. 
 
 Question of law or fact, liability of attorney in action for money collected 
 as, 602. 
 
 Receipt of money for client generally, authority of attorney with respect 
 to, 361. 
 
 Receipt of money outside scope of employment, authority of attorney with 
 respect to, 368. 
 
 Refusal to pay over money collected as defense to action by attorney 
 for compensation, 951. 
 
 Retention of fees from sum collected for client, right of attorney with 
 respect to, 577. 
 
 Set-off or counterclaim, right of attorney to establish in action by 
 client for money collected, 607. 
 
 Statute of limitations, running of against action by client against at- 
 torney for money collected, 604. 
 
 Summary proceeding, right of client to bring against attorney for re- 
 covery of money collected, 608. 
 
 Termination of authority of attorney to receive money for client, 363. 
 
 Third person, liability of attorney for moneys received on account of, 
 528. 
 
 Tort, liability in of attorney to client for money collected, 600. 
 
 Money Had and Keceived — 
 
 See Money. 
 
 Mongolian — 
 
 Right of Mongolian to be admitted to bar, 37, 40. 
 
 Moral Character — 
 
 See Character. 
 
 Moral Belinqnency — i 
 
 See Disbarment. 
 
 Moral Turpitude — 
 
 Conviction involving moral turpitude as ground for disbarment, 1269. 
 
 Mortgages — 
 
 Acceptance of mortgage in payment of client's claim, authority of at- 
 torney with respect to, 393. 
 
 Assignment of mortgage, ratification of by client, 376. 
 
 Collection of mortgage, authority of attorney with respect to as evidenced 
 by his employment to draw papers, 366. 
 
INDEX. 1453 
 
 [References are to pages.] 
 MORTGAGES — continued. 
 
 Collection of mortgage not in his possession, authority of attorney with 
 
 respect to, 365. 
 Extension of time for payment of mortgage debt, authority of attorney 
 
 with respect to, 367. 
 Extension of time for redemption, authority of attorney with respect to, 
 
 368. 
 Foreclosure — 
 
 Authority of attorney to compromise in case of foreclosure of mort- 
 gage, 387. 
 Authority of attorney to receive money paid after foreclosure to 
 
 redeem property, 369. 
 Covenant in mortgage fixing amount of attorney fee for foreclosure 
 
 as binding on parties, 772. 
 Right of attorney foreclosing mortgage to act for other person, 313. 
 Right of attorney to lien on judgment in foreclosure suit, 1032. 
 Inference of authority of attorney to receive principal of mortgage from 
 
 fact of authority to collect interest, 366. 
 Payment of balance due on mortgage, authority of attorney to bind client 
 
 for, 358. 
 Prior liens, authority of attorney for mortgagee to receive money from 
 mortgagor to satisfy, 369. 
 
 Motions — 
 
 Objection by motion to appearance of attorney, 426. 
 
 municipal Corporations — 
 
 Attorney-General, see that title. 
 
 Municipal taxation of attorneys, 101. 
 
 Power of attorney for municipality or quasi municipal body to enter into 
 
 stipulation, 480. 
 Power of police magistrate to disbar attorney, 1178. 
 Presumption of authority of attorney to appear for municipality, 419. 
 Bight to compensation of official employed as attorney for municipality, 
 
 753. 
 
 Municipal Courts — 
 
 See Courts. 
 
 Municipal ViTarrants — 
 
 Attorney's retaining lien as attaching to municipal warrant, 1036. 
 
 Murder — 
 
 See Homicide. 
 
 Mutilation of Documents ^ 
 
 See Disbarment. 
 
1454- iNUEx. 
 
 [References are to pages.] 
 Negligence — 
 
 Advice of counsel as defense to action against client for tort, 626. 
 Appeal or error, duty and liability of attorney to client with respect to 
 
 prosecuting, 569. 
 Assumpsit, right of client to maintain against attorney for negligence, 
 
 582. 
 Attachments, duty and liability of attorney to client with respect to, 
 
 568. 
 Bill in equity, right of client to maintain against attorney for negligence, 
 
 582. 
 Burden of proof in action against attorney for negligence, 584. 
 Character of money collected, duty and liability of attorney to client 
 
 with respect to, 572. 
 Collection of claim, duty and liability of attorney to client with respect 
 
 to, 56D. 
 Collection of claim, liability of attorney with respect to where he is 
 
 authorized to exercise discretion, 578. 
 Compensation, negligence of attorney as defense to action to recover, 
 
 945, 947. 
 Conducting litigation, duty and liability of attorney to client in, 563. 
 Confessing judgment, liability of attorney to client for loss occasioned 
 
 by, 566. 
 Costs, liability of attorney for in case of negligence, 536. 
 Damages recoverable in action by client against attorney for negligence 
 
 generally, 589. 
 Damages recoverable in action by client against attorney for negligence 
 
 in collection of claim, 594. 
 Defenses generally in action by client against attorney for negligence, 
 
 586. 
 Defenses generally in action by client against attorney for negligence 
 
 in collection of claim, 593. 
 Depreciated money, liability of attorney for accepting in payment of 
 
 claim, 571. 
 Enforcement of judgment, duty and liability of attorney to client with 
 
 respect to, 567, 568. 
 Entering judgment, duty and liability of attorney to client with respect 
 
 to, 566. 
 Erroneous advice to client, liability of attorney for damage resulting 
 
 from, 556. 
 Evidence in action by client against attorney for negligence, admissibility 
 
 of, 580. 
 Exception to erroneous ruling, liability of attorney for failure to take, 
 
 566. 
 Failure to advise client, liability of attorney for, 557. 
 Failure to defend suit, liability of attorney to client for, 563. 
 
INDEX. 1455 
 
 [References are to pages.] 
 NEGLIGENCE — continued. 
 
 Failure to institute suit, liability of attorney to client for, 563. 
 Failure to pay over proceeds of claim collected, liability of attorney to 
 
 client for, 574. 
 Form of action against attorney for negligence, 582. 
 Guarantor or insurer, attorney not, 551. 
 
 Ignorance of law, liability of attorney for loss resulting from, 553. 
 Imputation of attorney's negligence to client, 561. 
 Incompetent witness, liability of attorney for permitting testimony by, 
 
 566. 
 Instrtictions of client with reference to collection of claim, duty and 
 
 liability of attorney to follow, 577. 
 Insufficiency of security taken for client, liability of attorney for loss 
 
 occasioned by, 560. 
 Investment of funds for client, liability of attorney for loss occasioned 
 
 by, 558. 
 Judgment against client, liability of attorney for permitting recovery of, 
 
 567. 
 Liability of attorney for negligence generally, 529, 547. 
 Liability of attorney generally, see Liability of Attorney. 
 Lien on cause of action for personal tort, right of attorney to, 1014. 
 Lien on judgment for tort, right of attorney to, 1032. 
 Loss of client's money deposited in bank, liability of attorney for, 572, 
 
 573. 
 Mistake, liability of attorney for, 552. 
 Mitigation of damages, evidence in, in action by client against attorney 
 
 for negligence, 590. 
 Pleading and proof in action by client against attorney for negligence 
 
 in collection of claim, 591. 
 Pleadings, duty and liability of attorney to client with respect to prepara- 
 tion and filing of, 564. 
 Pleadings in action against attorney for negligence, 583. 
 Presumptions in action by client against attorney for negligence, 585. 
 Punitive damages as recoverable in action by client against attorney for 
 
 negligence, 590. 
 Question of law or fact, negligence of attorney as, 551, 586. 
 Retention of fees from sum collected for client, right of attorney with 
 
 respect to, 577. 
 Skill, care and prudence, liability of attorney to client as dependent on, 
 
 547. 
 Statute of limitations as defense in action by client against attorney for 
 
 negligence, 588. 
 Statute of limitations, running of against action by client against attor- 
 ney for negligence in collection of claim, 594. 
 Summary proceeding, right of client to institute against attorney for 
 
 injury occasioned by negligence, 611. 
 
1456 INDEX. 
 
 [References are to pages.] 
 NEGLIGENCE — contimied. 
 
 Survival of action by client against attorney for negligence, 591. 
 
 Third person, liability of attorney to for tortious act, 523. 
 
 Trial, duty and liability of attorney to client with respect to conduct of, 
 
 56S. 
 Vacation of judgment, liability of attorney to client for permitting, 567. 
 Written instrument, liability of attorney for failure to record, 560. 
 Written instrument, liability of attorney for negligence in preparing, 
 
 560. 
 
 Negroes — 
 
 Bight of negro to be admitted to bar, 40. 
 
 Neir Hampshire — 
 
 See Compromise. 
 
 New Jersey — 
 
 Admission to Practice, see that title. 
 
 Rule in New Jersey as to right of attorney to eompensation, 703. 
 
 NeiirBpapers — 
 
 See Disbarment. 
 
 New Trial — 
 
 Authority of attorney to agree to new trial, 498. 
 
 New Tork — . 
 
 New York statutory provisions as to purchase of litigious rights, 680. 
 
 Nonresidents — 
 
 Admission of attorneys of other jurisdictions to bar, 85. 
 
 Appointment of counsel for absentees, 147. 
 
 Authority of attorney to compromise where client is nonresident, 388. 
 
 Liability for costs of attorney representing nonresident litigants, 539. 
 
 Nonresidence as disqualification to act as assistant prosecuting attorney, 
 
 1105. 
 Presumption of authority of attorney to appear for nonresident, 419. 
 
 Nonsuit — 
 
 See Dismissal and Nonsuit. 
 
 Nontrading Partnerships — 
 
 See Partnerships. 
 
 Notary Public — 
 
 Communication made to attoriiey acting as notary public as privileged, 
 
 181. 
 Misconduct of attorney as notary public as ground for disbarment, 1258. 
 Right of attorney to act as notary public in client's afifairs, 130. 
 
INDEX. 1457 
 
 [References are to pages.] 
 
 Notes — 
 
 See Bills and Notes. 
 
 Notice — 
 
 Constructive notice to attorney as imputed to client, 270. 
 
 Lien of attorney, see that title. 
 
 Notice to attorney as imputed to client, 266. 
 
 Notice to member of firm as notice to all partners, 322. 
 
 Process, see that title. 
 
 Substitution, see that title. 
 
 Nuisances — 
 
 See Attorney-General. 
 
 Oaths — 
 
 Duelling oath as, 16, 82. 
 
 Necessity of taking oath of ofiice before admission to bar, 79. 
 
 Test oath, 17, 83. 
 
 Validity of statute regulating oath of office before admission to bar, 80. 
 
 Violation of oath of office on admission to bar, 81. 
 
 Objections — 
 
 See Admission to Practice; Appearance. 
 
 Obstructing Justice — 
 
 Conviction of obstructing justice as ground for disbarment, 1269. 
 
 Occupation Taz '^ 
 
 See Taxation. 
 
 Office — 
 
 See Process. 
 
 Officers — 
 
 Advice given to officer to induce him to violate his duty, right of attor- 
 ney to recover for, 750. 
 
 Advice of ministerial officer as defense in action for malicious prosecu- 
 tion, 650. 
 
 Appearance for public officer, presumption of authority of attorney with 
 respect to, 419. 
 
 Appointment to office, admission of applicant to bar as, 17. 
 
 Attorney-General, see that title. 
 
 Court officer, right of attorney to command services of, 15. 
 
 Courts, see that title. 
 
 Detectives, see that title. 
 
 Influencing public officer to grant Government contract, right of attor- 
 ney to recover for services in, 750. 
 
 Judicial officer, attorney as, 17. 
 
 Attorneys at Law Vol. II — 92. 
 
1458 iNUEX. 
 
 [References are to pages.] 
 OFFICERS — continued. 
 
 Municipality, right to compensation of official employed as attorney for, 
 753. 
 
 Officer of court, attorney as, 14. 
 
 Police officers, see that title. 
 
 Prosecuting attorneys, see that title. 
 
 Public officer, attorney as, 16, 17. 
 
 Replevin, enforcement of attorneys' lien by suit against officer for tak- 
 ing insufficient bond in, 1086. 
 
 Opinion Evidence — 
 
 See Evidence. 
 
 Opinions — 
 
 See Attorney-General; Courts. 
 
 Opponent — 
 
 See Privileged Communications. 
 
 Orders — 
 
 See Judgments; Town Orders. 
 
 Outstanding Claims — 
 
 See Claims. 
 
 Outstanding Title — 
 
 See Title. 
 
 Overcharges — 
 
 See Disbarment. 
 
 Overseers of the Poor — 
 
 Exemption of attorney from filling office of overseer of the poor, 114. 
 
 Papers — 
 
 Liability of attorney to client with reference to papers of client, 515. 
 
 Pardon — 
 
 Pardon as aflFecting right to disbar for criminal misconduct, 1276. 
 Pardon as ground for reinstatement of disbarred attorney, 1336. 
 Right of attorney to recover for services in attempting to secure pardon, 
 752. 
 
 Parties — 
 
 Compensation of attorney, proper parties to action to recover, 875. 
 Coparties, authority of attorney to appear for, 420. 
 Director of bank, right of to appear as its attorney, 28. 
 Joinder of parties, authority of attorney to agree to, 488. 
 
INDEX. 1459 
 
 [References are to pages.] 
 fARTIES — continued. 
 Lien of attorney — 
 
 Enforcement of attorney's lien against defendant in litigation, 1062. 
 Necessary parties to petition for determination and enforcement of 
 
 attorney's lien, 1068. 
 Parties to independent action to enforce attorney's lien, 1082. 
 Right of parties to litigation to enforce attorney's lien, 1062. 
 Nominal party to suit, communication by as privileged, 177. 
 Privilege of attorney as witness when he is party to transaction, 219. 
 Right of party to prosecute or defend for himself, 27. 
 Summary proceeding against attorney, parties to, 617. 
 Witness, right of attorney who is party to act as, 328. 
 
 Partition — 
 
 Allowance of compensation to attorney in partition proceeding, 847. 
 Right of attorney to lien on land for fees in partition proceedings, 1028. 
 
 Partnership — 
 
 Accounting between members of law partnership with respect to division 
 
 of firm profits, 837. 
 Admission of partner as binding on firm, 323. 
 Attorney representing partnership, right of to act subsequently for single 
 
 partner, 312. 
 Appearance for defendant in action against partnership, presumption of 
 
 authority of attorney with respect to, 420. 
 Commercial paper, right of member of firm to bind copartners by, 323. 
 Compensation — 
 
 Compensation of law partnership generally, 830. 
 
 Effect of dissolution of law partnership on right to compensation for 
 services, 832. 
 
 Effect on right to compensation of member of law partnership per- 
 forming services in individual capacity, 835. 
 
 Right of law partnership to compensation where one partner is un- 
 licensed, 26. 
 
 Disbarment, misappropriation of client's funds by partner as ground 
 for, 1221. 
 Dissolution of law partnership as terminating relation of attorney and 
 
 client, 236. 
 Dissolution of law partnership generally, 326. 
 Judge, right of partner of to practice before him. 111, 324. 
 Liability of firm to client for acts of individual member, 519. 
 Lien in favor of partnership, right of partner to enforce, 1061. 
 Nontrading partnership, law partnership as, 323. 
 Notice to member of firm as notice to all partners, 322. 
 Performance by associated attorney or partner, proof of as sufficient evi- 
 dence of performance in action by attorney for compensation, 914. 
 
1460 INDEX. • 
 
 [References are to pages.] 
 PARTNERSHIP — continued. 
 
 Prosecuting attorney, appointment of law partner of to act as his as- 
 sistant, 1103. 
 
 Prosecuting attorney, prohibition of partner of from practicing law, 112. 
 
 Retainer of law firm, effect of, 324. 
 
 Retainer of one partner, effect of, 325. 
 
 Service of process on one of firm of attorneys, sufficiency of, 470. 
 
 Summary proceedings against firm of attorneys, right to entertain on 
 account of act of single partner, 613. 
 
 Validity of copartnership of members of bar, 321. 
 
 Winding up business after dissolution, right of member of law partner- 
 ship to compensation for, 834. 
 
 Payment — 
 
 Acceptance of less than amount due in satisfaction of client's claim, 
 authority of attorney with respect to, 395. 
 
 Acceptance of payment by attorney otherwise than in money, effect of as 
 extinguishing client's claim, 394. 
 
 Application of payment as between several creditors, authority of at- 
 torney with respect to, 362. 
 
 Assignment of judgment, authority of attorney to accept in payment of 
 client's claim, 393. 
 
 Bill of sale, authority to accept in payment of client's claim, 393. 
 
 Bond, authority of attorney to accept in payment of client's claim, 393. 
 
 Burden of proof of authority of attorney to accept less than amount 
 due on client's claim, 397. 
 
 Burden of proof of authority of attorney to accept payment in some- 
 thing other than money, 395. 
 
 Biirden of proof of authority of attorney to compromise, 407. 
 
 Canada, rule in as to authority of attorney to compromise, 401. 
 
 Certificate of indebtedness, authority of attorney to accept in payment 
 of client's claim, 393. 
 
 Check, authority of attorney to accept in payment of client's claim, 393. 
 
 Claim held for collection, authority of attorney to receive payment of, 363. 
 
 Collateral security, authority of attorney to take for claim in his hands. 
 394. 
 
 Compensation, payment as defense to action by attorney for, 954. 
 
 Compensation, payment of fees of other counsel as defense to action by 
 attorney for, 956. 
 
 Compromise authorized by client, operation and extent of authority of 
 attorney with respect to, 404, 405. 
 
 Compromise by acceptance of payment otherwise than in money, author- 
 ity of attorney in respect to, 390. 
 
 Compromise, presumption of authority of attorney to make, 406. 
 
 Correction of clerical error in judgment reducing amount recoverable, 
 authority of attorney to assent to, 397. 
 
INDEX. 1461 
 
 [References are to pages.] , 
 PAYMKNT — continued. 
 
 County warrant, authority of attorney to accept in payment of client's 
 
 claim, 393. 
 Delegation of authority to accept payment, right of attorney with respect 
 
 to, 362. 
 Demand of payment, authority of attorney to make, 367. 
 Demand of payment, presumption of authority of attorney to make, 367. 
 Depreciated money, liability of attorney for accepting in payment of 
 
 claim, 571. 
 Disbarment, see that title. 
 
 Dower, authority of attorney to sign demand of, 367. 
 Draft, authority of attorney to accept in payment of client's claim, 393. 
 England, rule in as to authority of attorney to compromise, 402. 
 Execution, authority of attorney to receive payment of money collected on, 
 
 503. 
 Extension of time of payment, authority of attorney with respect to, 367. 
 Failure to pay over proceeds of claim collected, liability of attorney to 
 
 client for, 574. 
 Fraudulent receipt of attorney for amount due client as binding on latter, 
 
 397. 
 Judgment, authority of attorney to receive payment of, 500. 
 Judgment, delegation by attorney of authority to receive payment of, 372. 
 Judgment in favor of client, authority of attorney to accept less than 
 
 amount due on, 396. 
 Land or other property, authority of attorney to accept in payment of 
 
 client's claim, 392. 
 Legal tender, authority of attorney to accept payment in other than, 392. 
 Manner of payment to attorney, 363. 
 Mistake, liability of attorney to third person for money paid to him by, 
 
 527. 
 Mortgage, authority of attorney to accept in payment of client's claim, 
 
 393. 
 Note, authority of attorney to accept in payment of client's claim, 393. 
 Overpayment made to him for client, liability of attorney to third person 
 
 for, 527. 
 Payment to attorney as payment to client, 362. 
 
 Possession of evidence of indebtedness as creating presumption of author- 
 ity to receive payment, 364. 
 Proof of authority of attorney to compromise by his own declarations, 
 
 407. 
 Proof of authority of attorney to receive payment of debt, 368. 
 Proof of authority to accept payment in something other than money, 
 
 395. 
 Question for jury, authority of attorney to compromise as, 407. 
 Ratification by client of payment to attorney, 376. 
 
1462 INDEX, 
 
 [Heferenees are to pages.] 
 
 PAYMENT — continued. 
 
 Eatification of act of attorney in accepting less than amount due, 397. 
 Katification of attorney's acceptance of payment other than in money, 
 
 395. 
 Eevocation of express authority to compromise, 405. 
 Substitution of other indebtedness in lieu of client's demand, authority 
 
 6f attorney with respect to, 393. 
 Termination of authority of attorney to receive money for client, 363. 
 Termination of relation, payment made to attorney after as binding 
 
 client, 370. 
 Unauthorized compromise by attorney, effect of on rights of parties, 398, 
 
 . 399. 
 Unauthorized compromise by attorney, setting aside, 400. 
 
 Penalties — 
 
 Recovery of penalty from attorney for taking unlawful fees, 967. 
 
 Pendency of Suit— • 
 
 See Summary Proceedings. 
 
 Percentage — 
 
 See Bar Examinations. 
 
 Performance ^ 
 
 See Compensation. 
 
 Perjury — 
 
 Advice of counsel as defense in criminal prosecution for perjury, 628. 
 Perjury or subornation of perjury as ground for disbarment, 1265. 
 
 Personal Property — 
 
 Eight of attorney to lien on personal property, 1029, 1035. 
 
 Perverting Justice — 
 
 See Disbarment. 
 
 Petition — 
 
 Objection by petition to appearance by attorney, 426. 
 
 Petitioner — 
 
 See Disbarment. 
 
 Philippine Islands — 
 
 Eight of foreigner to be admitted to bar, 38. 
 
 Plea — 
 
 See Pleading. 
 
 Pleading — 
 
 Amendment of pleading, power of attorney to stipulate for, 481. 
 
INDEX. 1463 
 
 [References are to pages.] 
 PLEADING — contimied. 
 
 Answer, objection to appearance of attorney by, 427. 
 Attorney-general, see that title. 
 Bills of particulars, see that title. 
 Compensation of attorney — 
 
 Allegations and proof generally in action by attorney to recover 
 
 compensation, 881. 
 Declaring on express contract in action by attorney for compensa- 
 tion, 876. 
 Declaring on quantum meruit in action by attorney for compensa- 
 tion, 877. 
 Defensive pleading in action by attorney to recover compensation, 
 
 879. 
 Necessity and sufficiency of allegation of performance in action by 
 
 attorney for compensation, 878. 
 Necessity and sufficiency of allegation of plaintiff's qualifications 
 to practice law in action by attorney for compensation, 879. 
 Demurrer, objection to appearance of attorney by, 427. 
 Disbarment — 
 
 Defensive pleading In disbarment proceeding, 1300. 
 
 Necessity that proof agree with allegations in disbarment proceeding, 
 
 1308. 
 And see the title Disbarment. 
 Duty and liability of attorney to client with respect to preparation and 
 
 filing of pleadings, 564. 
 Extension of time for service of pleading, power of attorney to stipulate 
 
 for, 481. 
 Filing of pleading — 
 
 Authority of attorney to stipulate for extension of time to file plead- 
 ing, 481. 
 Power of attorney to enter into stipulation waiving right to file 
 
 pleadings, 482. 
 Presumption of authority of attorney to appear from filing of plead- 
 ing, 419. 
 Sufficiency of objection of attorney to appear made before answer 
 
 filed, 431. 
 Sufficiency of objection to authority of attorney to appear made 
 before plea filed, 431. 
 Judgment on pleadings, authority of attorney to agree to rendition of, 
 
 488. 
 Lien of attorney — 
 
 Pleading in independent action to enforce attorney's lien, 1083. 
 Sufficiency of petition for determination and enforcement of attor- 
 ney's lien in original action, 1067. 
 Money collected, pleading in action by client against attorney for, 600. 
 
14:64: INDEX. 
 
 [References are to pages.] 
 PLEADING — contmaed. 
 
 Negligence generally, pleadings in action against attorney for, 583. 
 
 Negligence in collection of claim, pleading and proof in action by client 
 against attorney for, 591. 
 
 Plea, objection to appearance of attorney by, 427. 
 
 Service of process or pleadings, power of attorney to enter into stipula- 
 tion waiving, 482. 
 
 Statements in pleading, liability of client for, 533. 
 
 Summary proceeding against attorney, method of instituting, 615. 
 
 Trial on merits without pleadings, authority of attorney to agree to, 488. 
 
 Withdrawal of pleading by opposite party, power of attorney to stipulate 
 for, 481. 
 
 Police Magistrate — 
 
 See Magistrates. 
 
 Police Officers — 
 
 Advice of police officers as defense in action for malicious prosecution, 
 650. 
 
 Poor Persons — 
 
 Amount of compensation to which attorney is entitled for serving poor 
 
 pferson, 813. 
 Assignment of counsel for poor person in civil case, 143. 
 Assignment of counsel for poor person in criminal case, 144. 
 Champerty, see Champerty, Barratry, and Maintenance. 
 Common-law rule as to right of attorney to compensation for services 
 
 rendered in aid of poor person in criminal case, 712. 
 Right of attorney assigned to defense of poor person in capital case to 
 
 reimbursement for expenses, 865. 
 Right of attorney to compensation for services rendered to person suing 
 
 in forma pauperis, 717. 
 Statute providing for compensation of attorney appointed to defend poor 
 
 person in criminal case, 715. 
 
 Possession — 
 
 See Authority of Attorney; Documents; Lien; Lien of Attorney; Privi- 
 leged Communications. 
 
 Postal lia-nrs — 
 
 Conviction of sending indecent matter through mails as ground for dis- 
 barment, 1269. 
 
 Post Office — 
 
 See Process. 
 
 Poundage — 
 
 Liability of attorney for poundage, 545. 
 
INDEX. 1400 
 
 [References are to pages.] 
 Poverty of Client — 
 
 See Compensation. 
 
 Power of Attorney — 
 
 Meaning of term, 19. 
 
 Poirers of County Commissioners — 
 
 See Counties. 
 
 Practice — 
 
 See Summary Proceedings. 
 
 Practice of Laiv — 
 
 Admission to practice, see that title. 
 
 Disbarment, see that title. 
 
 Partnership, see that title. 
 
 Eight to practice law as inherent right, 22. 
 
 Unauthorized practice, see that title. 
 
 Practicing Attorney — 
 
 Meaning of term, 12. 
 
 Practitioner ^ 
 
 Effect of allegation that person is "practitioner," 13. 
 
 Preferring Charges — 
 
 See Disbarment. 
 
 Premature Termination of Employment — 
 
 See Compensation. 
 
 Presenting Charges — 
 
 See Disbarment. 
 
 Presumptions — 
 
 Appeal or error, presumption as to authority to prosecute, 510. 
 
 Appearance after judgment, presumption as to authority of attorney with 
 respect to, 418. 
 
 Appearance generally, presumption of authority of attorney with respect 
 to, 415, 423. 
 
 Assignment of client's property to attorney, presumption as to, 281. 
 
 Authority of attorney, presumption as to, 354. 
 
 Bankruptcy proceedings, presumption of authority of attorney to appear 
 in, 419. 
 
 Compromise, presumption of authority of attorney to make, 406. 
 
 Conclusiveness of presumption of authority of attorney to appear, 420. 
 
 Conducting litigation, presumption as to authority of attorney in, 451 
 
 Confession of judgment for client, presumption as to authority of attor- 
 ney to make, 493. 
 
1466 INDEX. 
 
 [References are to pages.] 
 PRESUMPTIONS — continued. 
 
 Conveyance of property to attorney, presumption as to, 281. 
 Corporation, presumption of authority of attorney to appear for, 419. 
 Demand of payment, presumption of authority of attorney to make, 367. 
 Disbarment proceeding, presumptions against or in favor of defendant in, 
 
 1309. 
 Expense for client, presumption as to liability of attorney to incur, 
 
 S44. 
 Filing of pleading, presumption of authority of attorney to appear from, 
 
 419. 
 Finding of court in summary proceeding against attorney, presumption 
 
 as to, 619. 
 Fraud, presumption of where parties are not attorney and client, 276. 
 Fraud, presumption of with respect to dealings between attorney and 
 
 client, 274. 
 Gift by client to attorney, presumption as to validity of, 288. 
 Infant, presumption of authority of attorney to appear for, 419. 
 Lien of attorney, notice of presumed, 998. 
 
 Municipality, presumption of authority of attorney to appear for, 419. 
 Negligence, presumptions in action by client against attorney for, 585. 
 Nonresident, presumption of authority of attorney to appear for, 419. 
 Notice affecting rights of client, presumption as to authority of attorney 
 
 to give, 475. 
 Partnership, presumption as to authority of attorney who appears for 
 
 defendant in action against, 420. 
 Payment, possession of evidence of indebtedness as creating presumption 
 
 of authority to receive, 364. 
 Person who is not attorney, presumption of authority of to appear, 420. 
 Privileged communications, see that title. 
 
 Public officer, presumption of authority of attorney to appear for, 419. 
 Service of original process, presumption as to authority of attorney to 
 
 accept, 466. 
 Several persons, presumption of authority of attorney to appear for, 419, 
 
 420. 
 State, presumption of authority of attorney to appear for, 419. 
 Undue influence, presumption of from relation of attorney and client, 289. 
 Use of another, presumption of authority of attorney to appear in action 
 
 by one person to, 419. 
 
 Principal — 
 
 See Mortgages. 
 
 Principal and Surety — 
 
 See Suretyship. 
 
 Printing — 
 
 See Briefs. 
 
INDEX. 1467 
 
 [References are to pages.] 
 Priority — 
 
 See Bankruptcy; Lien of Attorney. 
 
 Frivate Attorney — 
 
 As distinguished from attorney at law, 19. 
 
 Private Connsel — 
 
 See Prosecuting Attorneys. 
 
 Private International Law — 
 
 See Conflict of Laws. 
 
 Privileged Commnnications ^ 
 
 Actions of client, information derived from as privileged, 169. 
 Address of client, testimony by attorney as to, 217. 
 
 Admission contained in correspondence between attorney and client, ad- 
 missibility of, 204. 
 Advice given by attorney to client as privileged, 169. 
 Agent of attorney, communication to as privileged, 172. 
 Agent of client, communication with as privileged, 177. 
 Agent, privileged nature of communication to attorney acting as, 189. 
 Appearance of written instrument, testimony by attorney as to, 201. 
 Application generally of rule respecting privilege of communication be- 
 tween attorney and client, 165. 
 Associate counsel, communication between as privileged, 177. 
 Attorney in fact, privileged nature of communication to, 189. 
 Behalf of client, communications made on as within rule of privilege, 171. 
 Belief that person consulted is attorney as affecting privilege of com- 
 munication, 173. 
 Burden of proof of privilege of communication between attorney and 
 
 client, 164. 
 By whom communication must be made to attorney to be privileged, 176. 
 Clerk of attorney, communication to as privileged, 172. 
 Compensation, testimony by attorney as to contract for, 217. 
 Confidential character of communication as affecting privilege, 194. 
 Construction of rule as to privilege of communications between attor- 
 ney and client, 161. 
 Conveyancer, privileged nature of communication to, 189. 
 Correspondence between associate counsel as privileged, 203. 
 Correspondence between attorney and client as privileged, 203. 
 Correspondence between attorney and third person as privileged, 203. 
 Correspondence between prosecuting attorney and attorney-general as 
 
 privileged, 203. 
 Delivery of written instrument, testimony by attorney as to, 201. 
 Determining whether privilege exists, in case of communication between 
 attorney and client, 163. 
 
1468 INDEX. 
 
 [References are to pages.] 
 PRIVILEGED COMMUNICATIONS — continued. 
 
 Disclosure of communication for own protection, right of attorney with 
 
 respect to, 220. 
 Document entrusted to attorney as privileged communication, 198. 
 Document, testimony by attorney as to execution, delivery, appearance, 
 
 existence, or possession of, 201. 
 Employee of attorney, communication to as privileged, 172. 
 Employment, testimony by attorney as to fact of, 216. 
 Enjoining secrecy, as essential to privilege of communication between 
 
 attorney and client, 165. 
 Execution of written instrument, testimony by attorney as to, 201. 
 Existence of written instrument, testimony by attorney as to, 201. 
 Expert witness, communication with as privileged, 178. 
 Foreign jurisdiction, admissibility of privileged communication in, 16S. 
 Fraudulent purpose, privileged nature of communication in furtherance 
 
 of, 214. 
 Friend, privileged nature of communication to attorney acting as, 189. 
 Funds of client, testimony by attorney as to, 215. 
 General rule as to privilege of communication between attorney and client, 
 
 154. 
 Handling of client's funds or property, testimony by attorney as to, 215. 
 Handwriting of client, testimony by attorney as to, 219. 
 Husband and wife, communication to attorney by as privileged, 177. 
 Identity of client, testimony by attorney as to, 218. 
 Importance of communication between attorney and client as affecting 
 
 privilege, 167. 
 Indirect evidence of privileged communication, 167. 
 Interpreter, communication through as privileged, 172, 178. 
 Judge, communication to as privileged, 173. 
 Judicial proceeding commenced or contemplated, necessity of to render 
 
 communication privileged, 190. 
 Knowledge not derived from client as within rule of privilege, 170. 
 Law student, communication to as privileged, 173. 
 Libel and slander, see that title. 
 
 Limitation of rule as to privileged communications, 204. 
 Magistrate, communication to as privileged, 173. 
 Materiality of communication between attorney and client as affecting 
 
 privilege, 167. 
 Nominal party to suit, communication by as privileged, 177. 
 Nonprofessional person, communication to as privileged, 174. 
 Notary public, privileged nature «f communication to attornev acting as, 
 
 181. 
 Opponent's attorney, privileged nature of communication to, 186. 
 Oral communications, privilege not restricted to, 169. 
 Origin of rule as to privilege of communications between attorney and 
 
 client, 158. 
 
INDEX. 1469 
 
 [References are to pages.] 
 PRIVILEGED COMMUNICATIONS — continued. 
 
 Part of eommunication privileged, effect of on admissibility in evidence, 
 168. 
 
 Party to suit, communication as privileged though client is not, 167. 
 
 Party to transaction, privilege of attorney as witness when he is, 210. 
 
 Personal appearance of client, information derived from as privileged, 169. 
 
 Possession of written instrument, testimony by attorney as to, 201. 
 
 Preliminary inquiry as to privileged character of communication between 
 attorney and client, 163. 
 
 Presumption of privilege in cases of communication between attorney and 
 client, 163. 
 
 Professional capacity, employment in as prerequisite to privileged com- 
 munication, 187. 
 
 property of client, testimony by attorney as to, 215. 
 
 Prosecuting attorney, privileged nature of communication to, 181. 
 
 Protection of self, right of attorney to disclose communication for, 220. 
 
 Public, communications intended to be as privileged, 208. 
 
 Reason of rule as to privilege of communications between attorney and 
 client, 159. 
 
 Relation of attorney and client, necessity of existence of in order to 
 render communication privileged, 175. 
 
 Retainer, payment of as necessary to render communication privileged, 
 191. 
 
 Sanity of client, right of attorney to express opinion as to, 171. 
 
 Scrivener, privileged nature of communication to, 179, 189. 
 
 Senses, privilege of communication as extending to all, 168. 
 
 Several clients, privileged nature of communication to attorney repre- 
 senting, 183. 
 
 Signs of client, information derived from as privileged, 169. 
 
 Statements by attorney to client as privileged, 169. 
 
 Statutory provisions forbidding disclosure of communications between 
 attorney and client, 156. 
 
 Student, communication to as privileged, 173. 
 
 Subject-matter of communication as affecting privilege, 192. 
 
 Subscribing witness, privilege of attorney when he is, 220. 
 
 Third persons, privileged nature of communications in presence of or 
 overheard by, 205. 
 
 Time of making communication as affecting privilege, 195. 
 
 To whom communication must be made to be privileged. 172. 
 
 Unlawful transaction, privileged nature of communication in relation to, 
 212. 
 
 Unlicensed practitioner, communication to as privileged, 173. 
 
 Violation of law, privileged nature of communication to attorney in con- 
 templation of, 212. . 
 
1470 INDEX. 
 
 [References are to pages.] 
 PRIVILEGED COMMUNICATIONS — continued. 
 Waiver — 
 
 Attorney representing two or more clients, waiver of privilege im 
 
 case of communication to, 184. 
 Client, waiver of privilege of communication by, 221. 
 Executor, administrator or heirs of client, waiver of privilege of 
 
 communication by, 222. 
 Former trial, effect of waiver of privilege of communication made; 
 
 at, 227. 
 Giving testimony, waiver of privileged communication by, 224. 
 Manner of waiving privilege of communication generally, 223. 
 State's witness, waiver of privilege of communication by becoming,. 
 
 226. 
 Successor of assignee for benefit of creditors, waiver of privilege of 
 
 communication by, 222. 
 Successor of trustee, waiver of privilege of communication by, 222. 
 Who may waive privilege of communication, 222. 
 Will, privileged nature of communication in connection with preparationi 
 
 of, 209. 
 Will, privilege from testifying of attorney who is subscribing witness to,. 
 
 220. 
 Words of client, information derived from as privileged, 169. 
 Written communications, privilege not restricted to, 169. 
 Written communications to attorney as privileged, 198. 
 Written instrument, testimony by attorney as to execution, delivery, ap- 
 pearance, existence, or possession of, 201. 
 
 Privileges and Exemptions — 
 
 Actionable statements against attorney, 135. 
 
 Appearing as counsel at bar of another jurisdiction, privilege of, 24. 
 
 Arrest, privilege of attorney from, 10, 115. 
 
 Bill of privilege in early times, 9. 
 
 Canada, privilege of attorney in with respect to prosecution for libel 
 
 or slander, 123. 
 Constable, exemption of attorney from filing office of, 114. 
 Disabilities, see that title. 
 England, privilege of attorney in with respect to prosecution for libel 
 
 or slander, 123. 
 General privileges and exemptions of attorney, 113. 
 Jury service, exemption of attorney from, 114. 
 Language used in judicial proceeding, privilege of attorney with respect 
 
 to, 118. 
 Libel or slander of attorney generally, 133. 
 
 Libel or slander, privilege of attorney from prosecution ,for, 118. 
 Military service, exemption of attorney from, 114. 
 Nonactionable statements against attorney, 140. 
 
INDEX. 1471 
 
 [References are to pages.] 
 PRIVILEGES AND EXEMPTIONS — cojitimied. 
 Officer of court, privilege of attorney as, 14. 
 
 Overseer of the poor, exemption of attorney from filling office of, 114. 
 Practicing law, privilege of generally, 22. 
 Privileged communications, see that title. 
 Service of process, privilege of attorney from, 116. 
 Sheriff, exemption of attorney from filling office of, 114. 
 Suit, privilege of attorney .with respect to, 114. 
 
 Supervisor of roads and highways, exemption of attorney from filling 
 office of, 114. 
 
 Probable Cause — 
 
 See Malicious Prosecution, 
 
 Probate — • 
 
 See Wills. 
 
 Procednre — 
 
 See Attorney-General; Disbarment; Lien of Attorney; Stipulations; Sum- 
 mary Proceedings. 
 
 Proceedings — 
 
 See Actions and Proceedings; Evidence. 
 
 Process — 
 
 Arrest on civil process, privilege of attorney from, 115. 
 
 Collateral attack on acceptance of service of original process by attorney, 
 466. 
 
 Disbarment, see that title. 
 
 Express authority of attorney to accept service of original process, 467. 
 
 Extension of time for service of pleading, power of attorney to stipulate 
 for, 481. 
 
 Fees for service of process, authority of attorney to bind clerk for pay- 
 ment of, 463. 
 
 Fees for service of process, liability of attorney for, 543, 545. 
 
 Firm of attorneys, sufficiency of service of process on one of, 470. 
 
 Implied authority of attorney to accept or waive service of original 
 process, 465. 
 
 Injunction against prosecuting action as properly seived on attorney for 
 respondent, 469. 
 
 Leaving process at his office, sufficiency of service on attorney by, 470. 
 
 Lien of attorney, see that title. 
 
 Mail, sufficiency of service of process on attorney by, 473. 
 
 Manner of service of process on attorney, 470. 
 
 Notice affecting rights of client, authority of attorney to give, 475. 
 
 Notice aflfecting rights of client, presumption as to authority of attorney 
 to give, 475. 
 
1472 INDEX. 
 
 [References are to pages.] 
 PROCESS — continued. 
 
 Pleading, see that title. 
 
 Presumption as to authority of attorney to accept service of original 
 
 process, 466. 
 Privilege of attorney from service of process, 116. 
 Ratification of unauthorized acceptance of service of original process by 
 
 attorney, 376, 466. 
 Relation of attorney and client, sufiiciency of service on attorney as de- 
 pending on existence of, 476. 
 Several parties, authority of attorney for one of to accept service of 
 
 notice for another, 469. 
 Several parties, sufficiency of service on attorney for one of, 469. 
 Stipulations, see that title. 
 Subsequent notice or paper, aijthority of attorney to accept service of 
 
 after original process has been served, 468. 
 Waiver of objections to process or service, power of attorney to enter into 
 
 stipulation for, 482. 
 Waiver of service of process or pleadings, power of attorney to enter into 
 
 stipulation for, 482, 
 
 Proctor — 
 
 See Admiralty. 
 
 Frocnrators — 
 
 Roman procurators, 2. 
 
 Professional Capacity^ 
 
 See Disbarment. 
 
 Professional Relation — 
 
 See Disbarment. 
 
 Professional Services — 
 
 See Lien of Attorney. 
 
 Prouiise — 
 
 Ratification by client of promise made by attorney, 376. 
 
 Proof — 
 
 See Evidence. 
 
 Property — 
 
 Authority of attorney, see that title. 
 
 Lien of attorney, see that title. 
 
 Money, see that title. 
 
 Personal property, see that title. 
 
 Privileged communications, see that title. 
 
 Privilege of practicing law as "property," 23. 
 
 Real property, see that title. 
 
INDEX. 1473 
 
 [References are to pages.] 
 Frosecnting Attorneys — 
 
 Advice of prosecuting attorney as defense in action for malicious prose- 
 cution, 649. 
 
 Appointment of prosecuting attorney to fill vacancy, 1092. 
 
 Assistant prosecuting attorney, right to appoint for trial purposes, 1100. 
 
 Assistant prosecuting attorney, who may appoint, 1101. 
 
 Assistant prosecuting attorney, who may be, 1102. 
 
 Civil actions, duty of prosecuting attorney with respect to, 1117. 
 
 Compensation of deputy, substitute or assistant prosecuting attorney, 
 1125. 
 
 Compensation of prosecuting attorney, 1123. 
 
 Compromise, authority of prosecuting attorney to make, 387. 
 
 Conduct of trial, duty of prosecuting attorney with respect to, 1120. 
 
 Conduct of trial for prosecuting attorney, right of private counsel with 
 respect to, 1122. 
 
 Conduct of trial, right of deputy, substitute or assistant prosecuting attor- 
 ney with respect to, 1121. 
 
 County officer, prosecuting attorney as, 1091. 
 
 Deputy prosecuting attorney, appointment of, 1097. 
 
 Deputy, right of prosecuting attorney to act by, 1097. 
 
 Detective, authority of prosecuting attorney to hire, 1119. 
 
 Disbarment misconduct of attorney as prosecuting attorney as ground for, 
 1259. 
 
 Disbarment proceeding, right of prosecuting attorney to institute, 1283. 
 
 Disbarred attorney, right of to hold office of prosecuting attorney, 1093, 
 1175. 
 
 Duties generally of prosecuting attorney, 1113. 
 
 Election or appointment of prosecuting attorney, 1091. 
 
 Eligibility to office of prosecuting attorney, 1093. 
 
 England, prosecuting officers in, 1089. 
 
 Expenses, authority of prosecuting attorney to incur, 1118. 
 
 Expert witness, authority of prosecuting attorney to employ, 1119. 
 
 Federal officer, prosecuting attorney as, 1090. 
 
 Foreign state, counsel from acting as assistant to prosecuting attorney, 
 24. 
 
 Former employment as disqualification to act as assistant prosecuting 
 attorney, 1104. 
 
 Grand jury, right of deputy or substitute prosecuting attorney to appear 
 before, 1116. 
 
 Grand jury, right of private counsel to appear before, 1116-1117. 
 
 Grand jury, right of prosecuting attorney to appear before, 1116. 
 
 Grounds for removal of prosecuting attorney, 1127. 
 
 Impartial conduct of trial, duty of prosecuting attorney with respect to, 
 1120. 
 
 Institution and conduct of criminal prosecution, duty of prosecuting at- 
 torney with respect to, 1114. 
 Attorneys at Law Vol. II — 93. 
 
1474: IJ!JDEX. 
 
 [References are to pages.] 
 PROSECUTING ATTORNEYS — continued. 
 
 Judge of court of record, right of to act as prosecuting attorney, 1104. 
 Legislature, appointment of member of as assistant prosecuting attorney, 
 
 1103. 
 Lieutenant Governor, appointment of as assistant to prosecuting attor- 
 ney, 1103. 
 Nonresidenee as disqualification to act as assistant prosecuting attorney, 
 
 1105. 
 Number of counsel who may assist prosecuting attorney, 1110. 
 Officer of court, prosecuting attorney as, 1090. 
 Outside of district, authority of prosecuting attorney, 1117. 
 Partner of prosecuting attorney, appointment of to act as his assistant, 
 
 1103. 
 Partner of prosecuting attorney, prohibition of from practicing law, 112. 
 Personal liability of prosecuting attorney for acts committed while in 
 
 discharge of duty, 1119. 
 Private counsel, eligibility of to act as assistant prosecuting attorney, 
 
 1106. 
 Privileged nature of correspondence between prosecuting attorney and 
 
 attorney general, 203. 
 Privilege of communication made to prosecuting attorney, 181. 
 Public officer, prosecuting attorney as, 1090. 
 Qualifications generally of prosecuting attorney, 1094. 
 Qualifications of deputy, substitute or assistant prosecuting attorney, 
 
 nil. 
 
 Qualifications of prosecuting attorney as to trial of particular cause, 1094. 
 
 Quasi judicial officer, prosecuting attorney as, 1091. 
 
 Removal of prosecuting attorney generally, 1126. 
 
 Reward, authority of prosecuting attorney to offer, 1119. 
 
 Solicitor general, right of to act as counsel for accused, 311. 
 
 State officer, prosecuting attorney as, 1090. 
 
 Substitute for prosecuting attorney, appointment of, 1098. 
 
 Tenure of office of deputy, substitute or assistant prosecuting attorney, 
 
 1112. 
 Tenure of office of prosecuting attorney, 1096. 
 Time of appointment of assistant to prosecuting attorney, 1111. 
 United States, prosecuting officers in, 1089. 
 Witness, prosecuting attorney as, 327. 
 
 Provisional Remedies — 
 
 Enforcement of attorney's lien against provisional remedies or securities 
 given in action, 1086. 
 
 Prudence — 
 
 See Liability of Attorney. 
 
INDEX. 1475 
 
 [References are to pages.] 
 Public Fnnds — 
 
 Right of attorney to lien on public or government funds, 1020. 
 
 Public Nuisances — 
 
 See Attorney-General. 
 
 Public Officers — 
 
 Advice of ministerial officer as defense in action for malicious prosecu- 
 tion, 650. 
 
 Attorney as public officer, 16, 17. 
 
 Attorney-general, see that title. 
 
 Detectives, see that title. 
 
 Enforcement of attorney's lien by suit against officer for taking in- 
 sufficient bond in replevin, 1086. 
 
 Police officers, see that title. 
 
 Presumption as to authority of attorney to appear for public officer, 419. 
 
 Prosecuting attorneys, see that title. 
 
 Eight of attorney to recover for advice given to officer to induce him 
 to violate his duty, 750. 
 
 Eight of attorney to recover for services in influencing public officer to 
 grant Government contract, 750. 
 
 Eight to compensation of official employed as attorney for municipality, 
 753. 
 
 Public Papers — 
 
 See Disbarment. 
 
 Public Policy — 
 
 See Compensation. 
 
 Public Records — 
 
 See Disbarment; Records. 
 
 Public Sales — 
 
 See Judicial Sales. 
 
 Punishment — 
 
 Disbarment, see that title. 
 
 Early English statute providing for punishment of attorney found in 
 default, 4. 
 
 Punitive Damages — 
 
 See Damages. 
 
 Purchase of Litigious Rights — 
 
 See Champerty, Barratry, and Maintenance. 
 
 Purchases.— 
 
 See Dealings between Attorney and Client. 
 
1476 INDEX. 
 
 [References are to pages.] 
 Qnalifications — 
 
 Admission to practice, qualifications required for generally, 23. 
 Attorney-general, see that title. 
 Prosecuting attorneys, see that title. 
 
 Quantum Meruit — 
 
 See Champerty, Barratry, and Maintenance; Compensation. 
 
 Questions of Iiair and Fact — 
 
 Advice of counsel as defense generally, sufficiency of as question of law 
 or fact, 627. 
 
 Advice of counsel as defense in action for malicious prosecution, suffi- 
 ciency of as question of law or fact, 634. 
 
 Amount of recovery in action by attorney for compensation as question 
 for jury, 962. 
 
 Appearance, authority of attorney with respect to as question of law or 
 fact, 435. 
 
 Compensation, right of attorney to as question for jury, 960. 
 
 Compromise, authority of attorney to make as question for jury, 407. 
 
 Money collected, liability of attorney in action for as question of law or 
 fact, 602. 
 
 Negligence of attorney as question of law or fact, 551, 586. 
 
 Ratification of act of attorney as question of law or fact, 377. 
 
 Quo Warranto — 
 
 Discretion of state attorney-general with respect to instituting quo war- 
 ranto, 1146. 
 
 Race — 
 
 Admission to bar, race as qualification for, 40. 
 
 Ratification — 
 
 Acceptance of payment other than in money, ratification of, 395. 
 
 Acceptance of service, ratification of, 376, 466. 
 
 Accepting less than amount due,, ratification of act of attorney in, 397. 
 
 Acts of attorney generally, ratification of, 374. 
 
 Adopting or accepting benefit of attorney's acts, ratification of act of 
 
 attorney by, 378. 
 Agreements of attorney generally, ratification of, 358, 376. 
 Appearance by attorney, ratification of, 376. 
 Assignment of judgment, ratification of, 376. 
 Assignment of mortgage, ratification of, 376. 
 
 Associate counsel, ratification of employment of, 374, 376, 379, 711, 900. 
 Burden of establishing ratification of act of attorney, 359, 377. 
 Execution- of bond by attorney, ratification of, 356. 
 Failure to object thereto, ratification of act of attorney by, 379. 
 Institution of legal proceedings, ratification of, 376. 
 
INDEX. 1477 
 
 [References are to pages.] 
 RATIFICATION — continued. 
 
 Laches as ratification of act of attorney, 380. 
 
 Partial ratification of act of attorney, 376. 
 
 Payment to attorney, ratification of, 376. 
 
 Promise by attorney, ratification of, 376. 
 
 Question of law or fact, ratification of act of attorney as, 377. 
 
 Receipt of money by attorney, ratification of, 370. 
 
 Release by attorney, ratification of, 376, 411. 
 
 Satisfaction of judgment, ratification of, 376, 502. 
 
 Real Estate Brokers — 
 
 See Brokers. 
 
 Real Property — 
 
 Homestead, right of attorney to lien on, 1028. 
 
 Lien on land by virtue of contract, right of attorney to, 1025. 
 
 Lien on land by virtue of statute, right of attorney to, 1025. 
 
 Lien on land in absence of statute, right of attorney to, 1024. 
 
 Necessity that land must have been "recovered" in litigation in order 
 
 to entitle attorney to lien thereon, 1026. 
 Partition proceedings, right of attorney to lien on land for fees in, 1028. 
 Property, see that title. 
 
 Reasonable Compensation — 
 
 See Compensation. 
 
 Receipt — 
 
 Fraudulent receipt of attorney for amount due client as binding on lat- 
 ter, 397. 
 
 Receivers — 
 
 Authority of attorney to enforce judgment by applying for appointment 
 
 of receiver, 505. 
 Bankruptcy, see that title. 
 
 Loss of attorney's charging lien by appointment of receiver, 1002. 
 Right of attorney of party to represent receiver, 313. 
 Right of attorney to compensation for services rendered to receiver, 721. 
 
 Receiving Stolen Property — 
 
 Conviction of receiving stolen property as ground for disbarment, 1269. 
 
 Record — 
 
 See Appeal and Error; Attorney of Record. 
 
 Records — 
 
 Authority of attorney to inspect public records, 352. 
 
 Evidence generally, see Evidence. 
 
 Record of suit as evidence in action by attorney for compensation, 884. 
 
14:78 INDEX. 
 
 [References are £o pages.] 
 Recording — 
 
 Liability of attorney for failure to record written instrument, 560. 
 Lien of attorney, see that title. 
 
 Recovery — 
 
 See Compensation of Attorney; Damages. 
 
 References — 
 
 Authority of attorney to agree to reference, 488. 
 
 Authority of attorney to bind client for payment of fees of referee, 463. 
 
 Liability of attorney for fees of referee, 543. 
 
 Ordering reference to determine amount due in proceeding to enforce 
 attorney's lien, 1069. 
 
 Right of referee to accept employment from litigant, 310. 
 
 Right to and effect of reference in summary proceeding against attor- 
 ney, 618. 
 
 Reformation — 
 
 Power of court to reform contract for compensation between attorney 
 and client, 766. 
 
 Refunding Money — 
 
 See Authority of Attorney. 
 
 Registration — 
 
 Enrollment or registration on admission to bar, 83. 
 
 Reinstatement — 
 
 See Disbarment. 
 
 Relation of Attorney and Client — 
 
 Abandonment of cause by attorneys as defense to action for compensation, 
 
 952. 
 Abandonment of contract, right of attorney with respect to, 241. 
 Accomplishment of purpose of employment as terminating relation, 248. 
 Agent, right of to employ counsel on behalf of principal, 235. 
 Authority of attorney, see that title. 
 Compensation of attorney, see that title. 
 Constructive notice to attorney as imputed to client; 270. 
 Creation of relation, 228. 
 
 Dealings between attorney and client, see that title. 
 Death of attorney as terminating relation, 248. 
 Death of client as terminating relation, 244. 
 Disbarment of attorney as terminating relation, 236. 
 Disbarment generally, see Disbarment. 
 Discharge of attorney, right of client with respect to, 237. 
 Dissolution of law firm as terminating relation, 236. 
 Illness of attorney as terminating relation, 236. 
 
INDEX. 
 
 1479 
 
 [References are to pages.] 
 RELATION OF ATTORNEY AND CU^EJ^T — continued. 
 Imputed notice and knowledge, 266. 
 Insanity of client as terminating relation, 236. 
 Knowledge of attorney as imputed to client, 266. 
 Liability of attorney, see that title. 
 Lien of attorney, sufficiency of notice of when given to person's attorney, 
 
 1001. 
 Notice to attorney as imputed to client, 266. 
 Removal of attorney as terminating relation, 238. 
 Retainer — 
 
 General and special retainers, 229. 
 
 Necessity of retainer, 230. 
 
 Obligations imposed by retainer, 230. 
 
 Partnership, effect of retainer of, 324. 
 
 Sufficiency of retainer, 231. 
 
 Written retainer, necessity of, 232. 
 Revocation of authority of attorney, 237. 
 Substitution — 
 
 Approval of court to substitution of attorney, necessity for, 259. 
 
 Cause, substitution of attorney for, 256. 
 
 Determining amount due or existence of lien in case of substitution 
 of attorney, 263. 
 
 Effect of substitution of attorney, 266. 
 
 Judgment, substitution of attorney after, 257. 
 
 Manner of effecting substitution of attorney, 258. 
 
 Notice of application for substitution of attorney, necessity of, 259. 
 
 Notice of substitution of attorney, 264. 
 
 Notice of substitution of attorney, necessity of, 260. 
 
 Right of client with respect to substitution of attorney, 253. 
 
 Terms on substitution of attorney, 260. 
 Summary proceeding against attorney, existence of professional relation 
 
 as condition precedent to, 613. 
 Summary proceeding, right of attorney to defend on ground that he has 
 
 resigned his office as attorney, 621. 
 Termination of relation by act of attorney, 241. 
 Termination of relation by act of client, 237. 
 Termination of relation generally, 236. 
 War as terminating relation, 236. 
 Who may employ attorney, 234. 
 
 Withdrawal from action, right of attorney with respect to, 242. 
 Witness, right of to have attorney, 235. 
 
 Release — 
 
 Arrest, authority of attorney to discharge person from, 411. 
 Attached property, authority of attorney to release, 412. 
 
1480 INDEX. 
 
 [References are to pages.] 
 RELEASE — contimied. 
 
 Claim of claim of client, authority of attorney to release, 408. 
 
 Competent witness, authority of attorney to execute release to person 
 liable to client in order to render him, 411. 
 
 Contract with another to assume it, authority of attorney to release lia- 
 bility by, 409. 
 
 Correction of clerical error, authority of attorney with respect to, 411. 
 
 Errors on record, authority of attorney to release, 411. 
 
 Execution lien, authority of attorney to release, 409. 
 
 Imprisonment, authority of attorney to release debtor from, 411. 
 
 Indorser, authority of attorney to release liability of, 409. 
 
 Interest on bond, authority of attorney to release, 409. 
 
 Joint debtor, authority of attorney to release, 409. 
 
 Judgment, authority of attorney to release, 409, 410, 499. 
 
 Liability of attorney to client for unauthorized compromise or release, 
 518. 
 
 Liability of attorney, release of by client, 516. 
 
 Lien, authority of attorney to release, 410. 
 
 Ratification of release by attorney, 376, 411. 
 
 Security for payment of client's debt, authority of attorney to release, 
 410. 
 
 Surety, authority of attorney to release, 410. 
 
 Remittitur — 
 
 Authority of attorney to enter remittitur, 498. 
 
 Removal — 
 
 See Prosecuting Attorneys; Relation of Attorney and Client; Summary 
 Proceedings. 
 
 Replevin — 
 
 Authority of attorney to execute bond in replevin action, 355. 
 Authority of attorney to incur expense in replevin suit, 464. 
 Enforcement of attorney's lien against replevin bond, 1086. 
 Enforcement of attorney's lien by suit against officer for taking insufS- 
 cient bond in replevin, 1086. 
 
 Representative — ' 
 
 See Compensation. 
 
 Representatives .— 
 
 See Executors and Administrators. 
 
 Residence — 
 
 Admission to bar, residence as qualification for, 38. 
 
 Restitution — 
 
 See Disbarment. 
 
INDEX. 1481 
 
 [References are to pages.] 
 Bestraining Orders — 
 
 See Injunctions. 
 
 Retainer — 
 
 Agent, right of to employ counsel on behalf of principal, 235. 
 Creation of relation of attorney and client by retainer, 228. 
 Former retainer, effect of on attorney's duty to client, 315. 
 General and special retainers, 229. 
 Necessity of retainer, 230. 
 Obligations imposed by retainer, 230. 
 Partner, effect of retainer of, 325. 
 Partnership, effect of retainer of, 324. 
 
 Privilege of communication to attorney in absence of retainer, 191. 
 "Retaining fee" or "retainer," meaning of, 705. 
 Right of attorney to retaining fee, 705. 
 Sufficiency of retainer, 231. 
 
 Value, necessity and sufficiency of proof of in action by attorney to re- 
 cover retaining fee, 917. 
 Who may employ attorney, 234. 
 Written retainer, necessity of, 232. 
 
 Betaining Lien — 
 
 See Lien of Attorney. 
 
 Retention of Fnnds — 
 
 See Compensation. 
 
 Retraxit ^ • 
 
 See Dismissal and Nonsuit. 
 
 Revival — 
 
 See Actions and Proceedings; Judgments. 
 
 Revocation — 
 
 See Authority of Attorney; Compromise; Disbarment; Relation of At- 
 torney and Client. 
 
 Rewards — 
 
 Authority of prosecuting attorney to offer revpard, 1119. 
 
 Riot — 
 
 Rioting as ground for disbarment, 1266. 
 
 Rome — 
 
 Cognitors, procurators, and advocates of Rome, 2. 
 
 Jurisconsults, 3. 
 
 Right of advocates to compensation under civil law, 688. 
 
 Rnles — 
 
 See Bar Examinations. 
 
1482 INDEX. 
 
 [References are to pages.] 
 Rule to Show Causes 
 
 See Disbarment. 
 
 Sales — 
 
 Authority of attorney to authorize sale of client's personalty, 360. 
 Authority of attorney to sell claim of client, 359. 
 Liability of client, see that title. 
 
 Satisfaction — 
 
 See Judgments. 
 
 Savings Bank — 
 
 See Banks. 
 
 Scope of Attorney's Anthority^ 
 
 See Authority of Attorney. 
 
 Scrivener — 
 
 Communication to attorney acting as scrivener as privileged, 179, 189. 
 
 Seal — 
 
 See Bonds. 
 
 Secured Creditor — 
 
 See Lien of Attorney. 
 
 Security — 
 
 Attorney's lien as attaching to securities, 1036. 
 
 Authority of attorney to release secur^y for payment of client's debt, 410. 
 
 Enforcement of attorney's lien against provisional remedies or securities 
 
 given in action, 1086. 
 Liability of attorney for loss occasioned by insufficiency of security taken 
 
 for client, 560. 
 Lien of attorney, see that title. 
 Summary proceedings, see that title. 
 
 Seizure of Property — 
 
 See Liability of Attorney; Liability of Client. 
 
 Separation — 
 
 Authority of attorney to bind client by separation agreement, 358. 
 Eight of attorney to compensation under contract designed to facilitate 
 separation, 758. 
 
 Servants — 
 
 See Master and Servant. 
 
 Service of Process^ 
 
 See Process. 
 
INDEX. 1483 
 
 [References are to pages.] 
 
 Services — 
 
 See Laborers. 
 
 Set-off — 
 
 Adverse party, attorney's lien as subordinate to right of set-off in, 1053. 
 Assignment of judgment to counsel as affecting right of set-off, 1056. 
 Compensation, right of defendant to assert set-off or counterclaim in 
 
 action by attorney for, 943. 
 Judgment, set-off of against judgment as affecting attorney's lien, 1054. 
 Lien, right of defendant's attorney to where set-off or counterclaim is 
 
 pleaded, 993. 
 Money collected, right of attorney to establish set-off or counterclaim 
 
 in action by client for, 607. 
 Summary proceeding against attorney, assertion of counterclaim as 
 
 affecting right to, 612. 
 
 Settlement — 
 
 See Champerty, Barratry, and Maintenance; Compensation of Attorney; 
 Disbarment; Lien of Attorney. 
 
 Several Persons — 
 
 See Appearance. 
 
 Sham Corporations — 
 
 See Disbarment. 
 
 Shares of Stock — 
 
 See Corporations. 
 
 Sheriffs — 
 
 Enforcement of attorney's lien by order on sheriff or assignee of judg- 
 ment to pay over fund, 1072. 
 Exemption of attorney from filling office of sheriff, 114. 
 
 Skill — 
 
 See Liability of Attorney. 
 
 Solicitation of Business — 
 
 See Compensation of Attorney; Disbarment. 
 
 Solicitor General — 
 
 See Prosecuting Attorneys. 
 
 Solicitors — 
 
 Canada, right of unlicensed person to "practice" as solicitor in, 28. 
 
 England, barristers and solicitors in, 5. 
 
 Fees of English solicitors, 8. 
 
 Right of solicitor to act as special master, 310. 
 
1484 INDEX. 
 
 [References are to pages.] 
 South Carolina — 
 
 See Compromise. 
 
 Special Admission — 
 
 Practicing at bar of another jurisdiction by "special admission/' 24, 
 
 Special Assessments — 
 
 See Taxation. 
 
 Special Proceedings — 
 
 See Actions and Proceedings. 
 
 Standing — 
 
 See Compensation. 
 
 State Courts — 
 
 Courts generally, see Courts. 
 
 Privilege extended to state practitioner to appear in federal court, 24. 
 
 State Insurance Department — 
 
 See Insurance. 
 
 States — 
 
 Admission of attorneys of other states to bar, 85. 
 
 Attorney-General, see that title. 
 
 Presumption of authority of attorney to appear for state, 419. 
 
 Prosecuting attorneys, see that title. 
 
 Eight of state to appeal from judgment in disbarment proceeding, 1331. 
 
 Statute o£ Iiimitations — 
 
 See Limitation of Actions. 
 
 Statutes — 
 
 Attorney-General, see that title. 
 
 Champerty, see Champerty, Barratry, and JIaintenance. 
 
 Compensation of Attorney, see that title. 
 
 Constitutional law, see that title. 
 
 Educational qualifications for admission to bar, statutes prescribing, 58. 
 
 Enactment of statute, right of attorney to compensation for endeavoring 
 
 to procure, 754. 
 Lien of attorney, see that title. 
 Suspension of law, right of attorney to compensation under contract to 
 
 procure, 754. 
 Unlicensed practice, statutory provisions forbidding, 30. 
 
 Statutory Fees — 
 
 See Costs. 
 
 Stenographers — 
 
 Authority of attorney to employ stenographer in course of litigation, 463. 
 Liability of attorney for services of stenographer, 544. 
 
INDEX. 1485 
 
 [References are to pages.] 
 Stipulations ^ 
 
 Abatement or revival of action, power of attorney to stipulate as to, 482. 
 Adjournment, power of attorney to stipulate with respect to, 482. 
 Amendment of pleading, power of attorney to stipulate for, 481. 
 Appeal, authority of attorney to stipulate with respect to, 481. 
 Attachment, power of attorney to stipulate for dissolution of, 482. 
 Bills and notes, see that title. 
 Decision of another, authority of attorney to stipulate that one suit shall 
 
 abide, 483. 
 Enforceability of stipulation made in open court, 485. 
 Evidence, power of attorney to stipulate as to matters of, 482. 
 Extension of time for decision of case by judge, authority of attorney to 
 
 stipulate for, 482. 
 Extension of time for service of pleading, power of attorney to stipulate 
 
 for, 481. 
 Extension of time to file pleading, authority of attorney to stipulate for, 
 
 481. 
 Filing pleadings, power of attorney to enter into stipulation waiving 
 
 right of, 482. 
 Informalities and irregularities, power of attorney to waive by stipula- 
 tion, 482. 
 Inquisition, power of attorney to waive by stipulation, 482. 
 Joint parties, authority of attorney for one of to stipulate for another 
 
 party, 469. 
 Mistake of fact, right of client to relief from stipulation made by attor- 
 ney under, 486. 
 Objections to process or service, power of attorney to waive by stipula- 
 tion, 482. 
 Power of attorney to enter into stipulations generally, 478. 
 Procedure, power of attorney to enter into stipulation with respect to 
 
 matters of, 481. 
 Eights of client, power of attorney to waive by stipulation, 484. 
 Service of process or pleadings, power of attorney to enter into stipxila- 
 
 tion waiving, 482. 
 Technical advantages, power of attorney to waive by stipulation, 982. 
 Withdrawal of pleading by opposite party, power of attorney to stipu- 
 late for, 481. 
 Writing, necessity that stipulation by attorney be in, 485. 
 
 Stock and Stockholders — 
 
 See Corporations. 
 
 Students — 
 
 Communication made to law student as privileged, 173. 
 Student as member of inns of court, 5. 
 
1486 INDEX. 
 
 [References are to pages.] 
 Subornation of Ferjnry — 
 
 Subornation of perjury as ground for disbarment, 1265. 
 
 Subpoena ^ 
 
 Advice of counsel as defense for refusal to obey subpoena, 629. 
 Right of attorney to issue subpoena, 15. 
 
 Subsequent Notices — 
 
 See Process. 
 
 Substitutes — 
 
 See Attorney-General. 
 
 Substitution — 
 
 Approval of court to substitution of attorney, necessity for, 259. 
 
 Cause for substitution of attorney, what constitutes, 256. 
 
 Compensation of attorney where performance of services is prevented by 
 substitution of attorney, 796. 
 
 Compensation of attorney who is substituted for original attorneys, 771. 
 
 Determining amount due or existence of lien in case of substitution of 
 attorney, 263. 
 
 Effect of substitution of attorney, 266. 
 
 Judgment, substitution of attorney after, 257. 
 
 Liability of attorney to client for act of substitute, 521. 
 
 Lien, right of attorney to as affected by substitution of attorneys, 1051. 
 
 Manner of effecting substitution of attorney, 258. 
 
 Notice of application for substitution of attorney, necessity of, 259. 
 
 Notice of substitution of attorney generally, 264. 
 
 Notice of substitution of attorney, necessity, of, 260. 
 
 Payment, see that title. 
 
 Proof of performance by substitute as sufficient evidence of perform- 
 ance of services in action by attorney for compensation, 914. 
 
 Prosecuting attorneys, see that title. 
 
 Right of client to substitute attorney, 253. 
 
 Terms on substitution of attorney, 260. 
 
 Summary Proceedings — 
 
 Agent of client, right of to institute summary proceeding against at- 
 torney, 617. 
 
 Another suit pending, right of attorney to. plead as defense in summary 
 proceeding, 620. 
 
 Assignment of fund, right of attorney to set up as defense in summary 
 proceeding, 620. 
 
 Attachment to enforce order in summary proceeding, issuance of, 623. 
 
 Compensation, right of attorney to recover by summary proceeding, 874. 
 
 Compensation, right of attorney to set up claim for as defense in sum- 
 mary proceeding, 619. 
 
INDEX. 
 
 1487 
 
 [References are to pages.] 
 SUMMARY PROCEEDINGS — continued. 
 
 Compensation, summary proceeding for recovery of as between several 
 counsel, 874. 
 
 Contempt, enforcement of order in summary proceeding by prosecution 
 for, 624. 
 
 Counterclaim, assertion of as affecting right to summary proceedings 
 against attorney, 612. 
 
 Defenses in summary proceeding against attorney, 619. 
 
 Delivery of documents, right of client to proceed summarily against at- 
 torney to enforce, 610. 
 
 Disbarment, light of attorney to plead as defense in summary proceeding, 
 621. 
 
 Disbarment generally, see Disbarment. 
 
 Evidence in summary proceeding against attorney, admissibility and suffi- 
 ciency of, 617. 
 
 Executor or administrator of client, right of to institute summary 
 proceeding against attorney, 617. 
 
 Finding of court, in summary proceeding against attorney, presumption 
 as to, 619. 
 
 Fine, enforcement of order in summary proceeding by, 624. 
 
 Garnishment of fund, right of attorney to set up as defense in summary 
 proceeding, 620. 
 
 Hearing of summary proceeding against attorney, 618. 
 
 Imprisonment, enforcement of order in summary proceeding by, 624. 
 
 Judgment against attorney, right to plead as defense in summary pro- 
 ceeding, 620. 
 
 Judgment against client, right of client to proceed summarily against 
 attorney to prevent entry of, 611. 
 
 Jurisdiction of summary proceeding against attorney, under vphat circum- 
 stances court will entertain, 611. 
 
 Legal remedy, right of attorney to plead as defense in summary proceed- 
 ings, 621. 
 
 Merit and good faith, necessity for showing of in defending summary 
 proceeding, 621. 
 
 Method of instituting summary proceeding against attorney, 615. 
 
 Money collected, right of client to proceed summarily against attorney for 
 recovery of, 608. 
 
 Negligence, right of client to proceed summarily against attorney for 
 injury occasioned by, 611. 
 
 Order in summary proceeding, nature and enforcement of, 622. 
 
 Parties to summary proceeding against attorney, 617. 
 
 Partner, right to entertain summary proceeding against firm of attorneys 
 on account of act of, 613. 
 
 Professional relation, existence of as condition precedent to summary 
 proceeding against attorney, 613. 
 
1488 INDEX. 
 
 [References are to pages.] 
 SUMMARY PROCEEDINGS — continued. 
 
 Purpose other than to recover money collected, right of client to proceed 
 
 summarily against attorney for, 610. 
 Reference in summary proceeding against attorney, right to and effect of, 
 
 618. 
 Removal from office, enforcement of order in summary proceeding by, 
 
 624. 
 Resignation of office as attorney, right of attorney to plead as defense 
 
 to summary proceeding, 621. 
 Review of summary proceeding against attorney, 619. 
 Security, right of attorney to plead giving of as defense in summary pro- 
 ceeding, 621. 
 Set-off, right of attorney to plead as defense in summary proceeding, 
 
 620. 
 Statute of limitations, right of attorney to plead as defense in summary 
 
 proceeding, 620. 
 Unauthorized act of attorney, right of client to proceed summarily 
 
 against attorney for injury caused by, 611. 
 
 Sammons — 
 
 Right of attorney to issue summons, 15. 
 
 Supervisors — 
 
 Exemption of attorney from filling office of supervisor of roads and higli- 
 vcays, 114. 
 
 Supplementary Proceedings — 
 
 Authority of attorney to enforce judgment by instituting supplementary 
 proceedings, 505. 
 
 Support and Maintenance — 
 
 Evidence of employment by one spouse in action by attorney against 
 other spouse for compensation for services in matrimonial action 
 generally, 909. 
 
 Suretyship — 
 
 Appeal bond, enforcement of attorney's lien against sureties on, 1086. 
 
 Attorney not practicing as vfithin statute prohibiting attorney from be- 
 coming surety, 13. 
 
 Bail bond, enforcement of attorney's lien against surety on, 1086. 
 
 Bond given by attorney in violation of statute or rule of court, validity 
 and effect of, 128. 
 
 False or fictitious surety, offering of as ground for disbarment, 1242. 
 
 Joint liability for compensation, evidence of employment by principal 
 or surety in action by attorney to enforce, 898. 
 
 Right of attorney to qualify as surety, 124. 
 
 Release of surety, authority of attorney with respect to, 410. 
 
INDEX. 1489 
 
 [References are to pages.] 
 ^^^ETYmiP-^ continued. 
 
 Release of surety by attorney's extension of time of payment, 367. 
 Replevin bond, enforcement of attorney's lien against, 1086. 
 
 Surrogates' Courts - 
 
 See Courts. 
 
 Survival of Actions — 
 
 See Actions and Proceedings. 
 
 Suspension 
 
 See Disbarment. 
 
 Taxable Costa — 
 
 See Costs. 
 
 Taxation — 
 
 Allowance of counsel fees in proceeding for collection of tax or local 
 
 assessment, 856. 
 Misappropriation of funds received by attorney as tax collector as ground 
 
 for disbarment, 1222. 
 Validity of statute providing for allowance of counsel fee in proceeding 
 
 to collect tax or local assessment, 856. 
 
 Taxation of Attorney — 
 
 Canada, right of unlicensed person to "practice" as solicitor in, 28. 
 Collection of occupation or license tax imposed on attorneys, 103. 
 Compensation for services, failure to pay tax as affecting right to, 104. 
 Compensation for services, right of unlicensed person to recover, 25. 
 Compensation, right to of unlicensed person for services not necessarily 
 
 rendered by attorney, 27. 
 Municipal taxation of attorneys, 101. 
 Nonresident attorney, taxation of, 102. 
 Partnership, right of to compensation where one partner is unlicensed, 
 
 26. 
 Power to impose occupation tax or license fee on attorneys, 96. 
 Punishment and penalties for practicing without license, 104. 
 Retired attorney as within statute requiring attorneys to obtain license, 
 
 13. 
 Statute of proceedings by unlicensed person, 109. 
 Statutory provisions forbidding unlicensed practice, 30. 
 What constitutes practicing without license, 106. 
 
 Tecbnical Advantages — 
 
 See Stipulations. 
 
 Xenftnts in Common — 
 
 Authority of attorney to appear for cotenants, 420. 
 Attorneys at Law Vol. II — 94. 
 
1490 INDEX. 
 
 [References are to pages.] 
 Tender — 
 
 Tender to attorney as tender to client, 362. 
 
 Tenure of Offioe — 
 
 See Prosecuting Attorneys. 
 
 Termination of Cause — 
 
 See Disbarment. 
 
 Termination of Employment — 
 
 See Compensation of Attorney. 
 
 Termination of Relation — 
 
 See Kelation of Attorney and Client. 
 
 Terms — 
 
 See Substitution. 
 
 Test Oath — 
 
 See Oaths. 
 
 Third Persons — 
 
 See Liability of Attorney; Privileged Communications. 
 
 Threats — 
 
 See Disbarment. 
 
 Title — 
 
 Right of attorney to give opinion as to validity of title to property, 340. 
 Right of attorney to purchase outstanding title, 299. 
 
 Torts — 
 
 Advice of counsel as defense to action against client for tort, 626. 
 Liability of attorney in tort to client for money collected, 600. 
 Negligence, see that title. 
 
 Right of attorney to lien on cause of action for personal tort, 1014. 
 Right of attorney to lien on judgment for tort, 1032. 
 
 Town Orders — 
 
 Attorney's retaining lien as attaching to town order, 1036. 
 
 Treason — 
 
 Conviction of treason as ground for disbarment, 1268. 
 
 Trespass — 
 
 Liability of client for trespass by attorney, 531. 
 
 Right of client to maintain trespass against attorney for fraud, 582. 
 
 Trial — 
 
 Absence of client, authority of attorney to agree to trial for misdemeanor 
 in, 488. 
 
IXDEX. 1491 
 
 [References are to pages.] 
 TRIAL — continued. 
 
 Admission of evidence, authority of attorney during trial to waive objec- 
 tions to, 487. 
 Admission of fact, authority of attorney during trial to make, 487. 
 Admissions generally, see Admissions and Declarations. 
 Appearance, sufficiency of objection to authority of attorney with respect 
 
 to made at time of trial, 431. 
 Attorney-General, see that title. 
 
 Conduct of trial, authority of attorney with respect to, 486. 
 Conduct of trial, duty and liability of attorney to client with respect to, 
 
 565. 
 Continuance, authority of attorney to agree to, 488. 
 Disbarment, see that title. 
 Exception to erroneous ruling, liability of attorney for failure to take, 
 
 566. 
 Joinder of parties, authority of attorney to agree to, 488. 
 Judgment on pleadings, authority of attorney to agree to rendition of, 
 
 488. 
 Jury trial, authority of attorney to wai\e, 487. 
 Opinion of certain courts as conclusive, authority of attorney to agree 
 
 to, 488. 
 Privileged communications, see that title. 
 Prosecuting attorneys, see that, title. 
 Second trial in action of ejectment, authority of attorney to dismiss 
 
 client's demand for, 488. 
 Testimony by incompetent witness, liability of attorney for permitting, 
 
 566. 
 Trial on merits without pleadings, authority of attorney to agree to, 
 
 488. 
 Venue, see that title. 
 Withdrawal of juror, authority of attorney to agree to, 488. 
 
 Trover — 
 
 Liability of attorney in trover to client for money collected, 600. 
 
 Trust Deeds — 
 
 Authority of attorney to accept deed of trust for client, .354. 
 
 Authority of attorney to bind client by stipulations in deed of trust, 358. 
 
 Trustee Process — 
 
 See Garnishment. 
 
 Trusts and Trustees — 
 
 Acting as attorney for creditor, right of trustee under deed of assign- 
 ment with respect to, 311. 
 Advice of counsel as defense in action against trustee, 626. 
 Attorney-General, see that title. 
 
1492 INDEX. 
 
 [References are to pages.] 
 TRUSTS AND TRUSTEES — con.W»M erf. 
 Bankruptcy, see that title. 
 
 Compensation for services rendered to trustee, right of attorney to, 721. 
 Compromise, authority of attorney for trustee to make, 387. 
 Creation of t^ust, authority of attorney to bind client with respect to, 
 
 358. 
 Disbarment, misappropriation of funds received by attorney as trustee 
 
 as ground for, 1222. 
 Lien on funds in hands of or owing to trustee, right of attorney to, 
 
 1017. 
 Privilege of communication, waiver of by successor of trustee, 222. 
 Purchase by attorney of subject-matter of employment as purchase in 
 
 trust, 302. 
 Receipt of money without authority as trustee, effect of, 370. 
 
 ITnantborized Acts — 
 
 See Disbarment; Liability of Attorney; Summary Proceedings. 
 
 tTnanthorized Compromise — 
 
 See Compromise. 
 
 Unantliorized Employment ^ 
 
 See Ratification. 
 
 TJnautliorized Practice — 
 
 Clerk of court, prohibition of from acting as attorney in court. 111. 
 
 Clerk of judge, prohibition of from practicing before him, 111. 
 
 Director of bank, prohibition of from appearing for bank, 112. 
 
 Judge, prohibition of from practicing law. 111. 
 
 Justice of the peace, prohibition of from practicing in county. 111. 
 
 Officers prohibited from practicing as attorneys, 111. 
 
 Partner of judge, prohibition of from practicing before him. 111. 
 
 Privilege of communication made to nonprofessional person, 174. 
 
 Privilege of communication made to person hot licensed to practice in 
 all courts, 173. 
 
 Prosecuting attorney, prohibition of partner of from practicing law, 112. 
 
 Punishment and penalties for, practicing without license, 104. 
 
 Referee in bankruptcy, prohibition of from practicing in bankruptcy pro- 
 ceeding, 112. 
 
 Status of proceedings by, unlicensed person, 109. 
 
 What constitutes practicing without license, 106. 
 
 ITnconscionable Contracts — 
 
 See Compensation. 
 
 Undue Advantage >— 
 
 See Disbarment. 
 
INDEX. 1493 
 
 [References are to pages.] 
 Undne Influence — 
 
 Presumption of undue Influence from relation of attorney and client, 
 289. 
 
 United States — 
 
 Attorney-General, see that title. 
 Compensation of attorney, see that title. 
 Prosecuting officers in the United States, 1089. 
 
 TTnlaivf nl Contracts — 
 
 See Disbarment. 
 
 Unsecured Creditor — 
 
 See Lien of Attorney. 
 
 Use — 
 
 Presumption of authority of attorney to appear in action by one person 
 to use of another, 419. 
 
 Usual Compensation — 
 
 See Compensation. 
 
 Vacation of Judgments — 
 
 See Judgments. 
 
 Value of Services — 
 
 See Compensation. 
 
 Variance — 
 
 Allegations and proof generally in action by attorney to recover com- 
 pensation, 881. 
 
 Necessity that proof agree with allegations in disbarment proceeding, 
 1308. 
 
 Vendor and Purchaser — 
 
 Authority of attorney to contract for conveyance of land on behalf of 
 client, 357, 360. 
 
 Venue — 
 
 Authority of attorney to agree that change of venue shall not be taken, 
 453. 
 
 Verdict — 
 
 See Disbarment. 
 
 Verification — 
 
 See Disbarment. 
 
 View of IJaw — 
 
 See Disbarment. 
 
1494 INDEX. 
 
 [References are to pages.] 
 
 Violation of Laiv — 
 
 See Privileged Communications. 
 
 Waiver — 
 
 See Appeal and Error; Appearance; Authority of Attorney; Dealings 
 Between Attorney and Client; Lien of Attorney; Privileged Com- 
 munications; Process. 
 
 ■War — 
 
 War as terminating relation of attorney and client, 236. 
 
 Warrants — 
 
 See County Warrants; Municipal Warrants. 
 
 W^ealth of Client — 
 
 See Compensation of Attorney. 
 
 ^Veiglit of Evidence — 
 
 See Evidence. 
 
 TVills — 
 
 Admissibility of testimony of attorney who is subscribing witness, 220. 
 Communication to attorney in connection with preparation of will as 
 
 privileged, 209. 
 Right of attorney to lien for services rendered in will contest, 1019. 
 Eight of attorney to lien on judgment in proceeding to probate will, 
 
 1032. 
 Kight of attorney to lien on legacy due client, 1019. 
 
 ■Winding np Business — 
 
 See Partnership. 
 
 Winding np Proceedings '^ 
 
 See Corporations. 
 
 Wisconsin — 
 
 Rule in Wisconsin with respect to champertous agreement as defense to 
 action, 686. 
 
 ■Withdrawal — 
 
 See Relation of Attorney and Client. 
 
 ■Witnesses — 
 
 Adverse party, right of attorney called by to act as witness, 331. 
 
 Advice of counsel as ground for refusal to testify, 629. 
 
 Appearance, attorney as competent witness to prove his authority with 
 
 respect to, 434. 
 Delaware, rule in as to right of attorney to act as witness, 329. 
 
INDEX. 1495 
 
 [HefcicTicos are to pages.] 
 WITNESSES — continued. 
 
 Disbarment, see that title. 
 
 Expert witness, authority of attorney to employ, 464. 
 
 Expert witness, authority of prosecuting attorney to employ, 1119. 
 
 Favor of witnesses in criminal ease, right of attorney to recover for 
 
 services in securing, 750. 
 Tees of witness, liability of attorney for, 543. 
 Foreign laws, proof of by attorney, 333. 
 
 Georgia, rule in as to right of attorney to act as witness, 330. 
 Incompetent witness, liability of attorney for permitting testimony by, 
 
 566. 
 Libel and slander, see that title. 
 Party to proceeding, attorney who is as witness, 328. 
 Privileged communications — 
 
 Action of client, information derived from as privileged, 169. 
 
 Address of client, testimony by attorney as to, 217. 
 
 Admission contained in correspondence between attorney and client, 
 
 admissibility of, 204. 
 Advice given by attorney to client as privileged, 169. 
 Agent of attorney, communication to as privileged, 172. 
 Agent of client, communication with as privileged, 177. 
 Agent, privileged nature of communication to attorney acting as, 
 
 189. 
 Appearance of written instrument, testimony by attorney as to, 201. 
 Application generally of rule respecting privilege of communication 
 
 between attorney and client, 165. 
 Associate counsel, communications between as privileged, 177. 
 Attorney in fact, privileged nature of communication to, 189. 
 Behalf of client, communications made on as within rule of privilege, 
 
 171. 
 Belief that person consulted is attorney as affecting privilege of 
 
 communication, 173. 
 Burden of proof of privilege of communication between attorney and 
 
 client, 164. 
 By whom communication must be made to attorney to be privileged, 
 
 176. 
 Claim of privilege of communication by client, 221. 
 Clerk of attorney, communication to as privileged, 172. 
 Compensation, testimony by attorney as to contract for, 217. 
 Confidential character of communication as affecting privilege, 194. 
 Construction of rule as to privilege of comnumieation between at- 
 torney and client, 161. 
 Conveyancer, privileged nature of communication to, 189. 
 Correspondence between associate counsel as privileged, 203. 
 Correspondence betwecs attorney and client as privileged, 203. 
 
1496 INDEX. 
 
 [References are to pages.] 
 WITNESSES — continued. 
 
 Privileged communications — continued. 
 
 Correspondence between attorney and third person as privileged, 203. 
 
 Correspondence between prosecuting attorney and attorney as privi- 
 leged, 203. 
 
 Delivery of written instrument, testimony by attorney as to, 201. 
 
 Determining whether privilege exists in case of communication be- 
 tween attorney and client, 163. 
 
 Disclosure of communication for own protection, right of attorney 
 with respect to, 220. 
 
 Document entrusted to attorney as privileged communication, 198. 
 
 Document, testimony by attorney as to execution, delivery, appear- 
 ance, existence, or possession of, 201. 
 
 Employee of attorney, communication to as privileged, 172. 
 
 Employment, testimony by attorney as to fact of, 216. 
 
 Enjoining secrecy as essential to privilege of communication be- 
 tween attorney and client, 165. 
 
 Execution of written instrument, testimony by attorney as to, 201. 
 
 Existence of written instrument, testimony by attorney as to, 201. 
 
 Expert witness, communication with as privileged, 178. 
 
 Foreign jurisdiction, admissibility of privileged communication in, 
 168. 
 
 Fraudulent purpose, privileged nature of communication in further- 
 ance of, 214. 
 
 Friend, privileged nature of communication to attorney acting as, 
 189. 
 
 Funds of client, testimony by attorney as to, 215. 
 
 General rule as to privilege of communication between attorney and 
 client, 154. 
 
 Handling of client's funds or property, testimony by attorney as to, 
 215. 
 
 Handwriting of client, testimony by attorney as to, 219. 
 
 Husband and wife, communication to attorney by as privileged, 177. 
 
 Identity of client, testimony by attorney as to, 218. 
 
 Importance of communication between attorney and client as affect- 
 ing privilege, 167. 
 
 Indirect evidence of privileged communication, 167. 
 
 Interpreter, communication made through as privileged, 172. 
 
 Judge, communication to as privileged, 173. 
 
 Judicial proceeding commenced or contemplated, necessity of to 
 render communication privileged, 190. 
 
 Knowledge not derived from client as within rule of privilege, 170. 
 
 Law student, communication to as privileged, 173. 
 
 Limitation of rule as to privileged communications, 204. 
 
 Magistrate, communication to as privileged, 173. 
 
INDEX. 1497 
 
 [References are to pages.] 
 WITNESSES — continued. 
 
 Privileged communications — continued. 
 
 Materiality of communication between attorney and client as affect- 
 ing privilege, 167. 
 
 Nominal party to suit, communication by as privileged, 177. 
 
 Nonprofessional person, communication to as privileged, 174. 
 
 Notary public, privileged nature of communication to attorney acting 
 as, 181. 
 
 Opponent's attorney, privileged nature of communication to, 186. 
 
 Oral communications, privilege not restricted to, 169. 
 
 Origin of rule as to privilege of communications between attorney 
 and client, 158. 
 
 Part of communication privileged, effect of on admissibility in evi- 
 dence, 168. 
 
 Party to suit, communication as privileged though client is not, 167. 
 
 Party to transaction, privilege of attorney as witness when he is, 
 219. 
 
 Personal appearance of client, information derived from as privileged, 
 169; 
 
 Possession of written instrument, testimony by attorney as to, 201. 
 
 Preliminary inquiry as to privileged character of communication 
 between attorney and client, 163. 
 
 Presumption of privilege in case of communication between attorney 
 and client, 163. 
 
 Professional capacity, employment in as prerequisite to privileged 
 communication, 187. 
 
 Property of client, testimony by attorney as to, 215. 
 
 Prosecuting attorney, privileged nature of communication to, 181. 
 
 Protection of self, right of attorney to disclose communication for, 
 220. 
 
 Public, communication intended to be as privileged, 208. 
 
 Reason of rule as to privilege of communications between attorney 
 and client, 159. 
 
 Relation of attorney and client, necessity of existence of in order to 
 render communication privileged, 175. 
 
 Retainer, payment of as necessary to render communication privi- 
 leged, 191. 
 
 Sanity of client, right of attorney to express opinion as to, 171. 
 
 Scrivener, privileged nature of communication to, 179, 189. 
 
 Senses, privilege of communication as extending to all, 168. 
 
 Several clients, privileged nature of communication to attorney repre- 
 senting, 183. 
 
 Signs of client, information derived from as privileged, 169. 
 
 Statements by attorney to client as privileged, 169. 
 
1498 INDEX. 
 
 [Eeferences are to pages.] 
 WITNESSES — continued. 
 
 Privileged communications — continued. 
 
 Statutory provisions forbidding disclosure of communications be- 
 tween attorney and client, 356. 
 Student, communication to as privilege, 173. 
 Subject-matter of communication as affecting privilege, 192. 
 Subscribing witness, privilege of attorney when he is, 220. 
 Third person, privileged nature of communication in presence of or 
 
 overheard by, 205. 
 Time of making communication as affecting privilege, 195. 
 To whom communication must be made to be privileged, 172. 
 Unlawful transaction, privileged nature of communication in relation 
 
 to, 212. 
 Unlicensed practitioner, communication to as privileged, 173. 
 Violation of law, privileged nature of communication to attorney in 
 
 contemplation of, 212. 
 Waiver of privilege — 
 
 Assignee for benefit of creditors, waiver of privilege of com- 
 munication by successor, 222. 
 Executor, administrator or heirs of client, waiver of privilege of 
 
 communication by, 222. 
 Former trial, effect of waiver of privilege of communication 
 
 made at, 227. 
 Giving testimony, waiver of privileged communication by, 224. 
 Manner of waiving privilege of communication generally, 223. 
 Several clients, waiver of privilege in case of communication 
 
 made to attorney representing, 184. 
 State's witness, waiver of privilege of communication by becom- 
 ing, 226. 
 Trustee, waiver of privilege of communication by successor of, 
 
 222. 
 Who may waive privilege of communication, 222. 
 Will, privileged nature of communication in connection with prepara- 
 tion of, 209. 
 Will, privilege from testifying of attorney who is subscribing wit- 
 ness to, 220. 
 Words of client, information derived from as privileged, 169. 
 Written communications, privilege not restricted to, 169. 
 Written communication to attorney as privileged, 198. 
 Written instrument, testimony by attorney as to execution, delivery, 
 appearance, existence, or possession of, 201. 
 Prosecuting attorney as witness, 327. 
 Qualifications of attorney as witness, 327. 
 Release to person liable to client, authority of attorney to execute in 
 
 order to render him competent witness, 411. 
 Eight of witness as such to have attorney, 235. 
 
iKUjfix. 1499 
 
 [References are to pages.] 
 WITNESSES — oontinmdi 
 
 Title to property, right of attorney to give opinion as to validity of, 340. 
 Withdrawal from cause, necessity of when attorney becomes witness, 331. 
 
 'Women ^ 
 
 Admission to bar, eligibility of women for, 16, 45. 
 Admission to bar, legal arguments for and against, 50. 
 Admission to bar, nonlegal arguments for and against, 52. 
 Married women, see that title. 
 
 Words and Phrases — 
 
 "Amicus curiae," meaning of, 147. 
 
 "Attorney at law" and "counselor" distinguished, 17. 
 
 "Attorney at law" defined, 11. 
 
 "Attorney in fact" defined, 19. 
 
 "Attorney of record" defined, 19. 
 
 "Attorney," signification of word, 11. 
 
 "Client" defined, 18. 
 
 "Lawyer" defined, 18. 
 
 "Practicing attorney" defined, 12. 
 
 "Practitioner," efi'ect of allegation that person is, 13. 
 
 "Property," privilege of practicing law as, 23. 
 
 "Public ofScer" in constitution, attorney as, 17. 
 
 "Special admission," practicing at bar of foreign court by, 24. 
 
 Writ — 
 
 See Costa. 
 
 W^riting — 
 
 See Lien of Attorney; Stipulationa. 
 
 Writ of Error — 
 
 See Appeal and Error. 
 
 Writ of Seizure — 
 
 See Judgments. 
 
 Written Anthority ^ 
 
 See Appearance. 
 
 Written Instruments — 
 
 See Correspondence; Documents; Liability of Attorney; Privileged Com- 
 munications; Witnesses.